Dorgan v. Scheer — 62 N.Y.S. 1030

Majority

p. 1030

DORGAN et al. v. SCHEER.

(City Court of New York, General Term.

March 2, 1900.)

Headnote

Pleading—Bill of Particulars—Application. ■

A motion by plaintiff to require defendant to serve a bill of particulars of a counterclaim set up in his answer is properly denied where the affidavit in support thereof does not state that the means of obtaining the information sought to be elicited by the bill of particulars is beyond

p. 1031

plaintiff’s reach, and that he has no means of obtaining the same, and that it is entirely in defendant’s knowledge. •

Appeal from special term.

Action by John J. Dorgan and another against Dora Scheer. Defendant pleaded a counterclaim, and plaintiffs moved for a bill of particulars. From an order denying the motion, plaintiffs appeal.

Affirmed.

Argued before FITZSIMORS, C. J., and CORLAR and O’DWYER, JJ.

A. Walker Otis, for appellants.

Louis A. Jaffer, for respondent.

The plaintiffs allege that they are ignorant of the particulars sought, and that it is necessary and material to the plaintiffs that they should have rendered to them a bill of particulars thereof, in order to properly resist the counterclaim of the defendant; but the affidavit fails to state that the means of obtaining the said information are beyond their reach, and that they have no means of obtaining the same, and that the information is entirely with the defendant. Such an allegation is material and necessary in an application for a bill of particulars, and without such an allegation the motion must fail because of such omission. Constable v. Hardenbergh (Sup.) 27 N. Y. Supp. 1024 ; Cycle Co. v. Dyer (Sup.) 52 N. Y. Supp. 159 ; Manufacturing Co. v. Lazzaro (Sup.) 43 N. Y. Supp. 1110 ; Villiers v. Railroad Co. (City Ct. N. Y.) 48 N. Y. Supp. 614 .

The order appealed from should be affirmed, with $10 costs, but with leave to the plaintiffs to apply anew at special term if so advised. All concur.