Majority
p. 374(27 Misc. Rep. 506.) GALLERSTEIN v. MANHATTAN RY. CO. (Supreme Court, Appellate Term. May 24, 1899.) Argued before FREEDMAN, P. J., and MacLEAN and IEVEN-TRITT, JJ.
Headnote
Bill op Particulars—Affidavit by Attorney.The affidavit of defendant’s attorney is insufficient to warrant the granting of a motion for a hill of particulars.
Appeal from city court of New York, general term.
Action by Phineas Gallerstein, an infant, by William Gallerstein, his guardian ad litem, against the Manhattan Railway Company. From an order of the general term affirming an order requiring plaintiff' to serve a bill of particulars ( 57 N. Y. Supp. 394 ),. plaintiff appeals.
Reversed.
Emanuel Hertz, for appellant.
Charles A. Gardiner, for respondent.
The motion resulting in the order appealed from was based upon an affidavit of an attorney employed in the office of the attorney for the defendant and upon the pleadings. The only proof as to the alleged necessity of the order consisted in the affidavit referred to. That such an affidavit, even if made by the attorney of record, is wholly insufficient, has been expressly determined in Dueber Watch-Case Mfg. Co. v. Keystone Watch-Case Co. (Sup.) 21 N. Y. Supp. 342 . To.the same effect are Mayer v. Mayer
p. 375
(Sup.) 51 N. Y. Supp. 1079 ; Van Olinda v. Hall, 82 Hun, 357 , 31 N. Y. Supp. 495 ; Gridley v. Gridley, 7 Civ. Proc. R. 215. The order should he reversed.
Order reversed, with costs to appellant.
LEVBNTRITT, J., concurs. MacEEAN, J., taking no part