Stevens v. Smith — 56 N.Y.S. 540

Majority

p. 540

(38 App. Div. 119.)

STEVENS v. SMITH.

(Supreme Court, Appellate Division, First Department.

March 10, 1899.)

Headnote

Bill of Particulars—Affidavit of Attorney.

An affidavit to compel defendant to serve bill of particulars made by plaintiff’s attorney, which alleged “that such alleged credits are not within the special knowledge of the plaintiff,” is insufficient.

Appeal from special term, New York county.

Action by George E. Stevens against Benjamin C. Smith. From an order requiring defendant to serve a bill of particulars, he appeals.

Beversed.

Argued before VAN BRUNT, P. J., and BARRETT, RUMSEY, McLaughlin, and ingraham, jj.

Samuel Watters, for appellant.

Louis L. G. Benedict, for respondent.

The plaintiff made a motion to compel the defendant to serve a bill of particulars upon a motion of his attorney which alleges that “such alleged credits are not within the special knowledge of the plaintiff.” Just how the attorney could swear to what was within the knowledge of the plaintiff is not apparent. We have held many times that an affidavit for a bill of particulars, made by the attorney, is not sufficient. The last case was that of Mayer v. Mayer, 29 App. Div. 393 , 51 N. Y. Supp. 1079 . For this reason the order appealed from must he reversed, with $10 costs and disbursements, and the motion denied, with $10 costs.