Hoeninghaus v. Chaleyer — 22 N.Y. St. Rep. 528

Majority

p. 528

Frederick Hoeninghaus et al., App’lts, v. Francisque Chaleyer et al., Resp’ts.

(Supreme Court, General Term, First Department,

Filed March 29, 1889.)

Headnote

1. Bill of pabticulabs—When motion fob will be denied.

A motion requiring plaintiff to furnish a hill of particulars before-answer will he denied, where the defendants are fully able to answer without further particulars of the plaintiff’s claim than they already possess, especially when he does not himself deny that he has knowledge of the-matters as to which he demands particulars or when his attorney’s affidavit as to such want of knowledge on the part of his' client is insufficient.

3 Same—By whom affidavit should be made.

In such cases the affidavit of want of knowledge should be made by

p. 529

the party and not hy his attorney. The true rule is, the affidavit should he made hy the defendant himself as the purpose of a bill of particulars is to prevent surprise on the trial, which is a matter personal to the party raising the objection. Although the counts may be general the defendant may well know the specific grounds of action, and a bill of particulars is unnecessary. This point should be covered by the affidavit of the party himself.

The case of Rice v. Rockefeller (19 N. Y. State Rep., 162), is not in. conflict with this rule.

Appeal from special term order requiring the plaintiffs to furnish a bill of particulars before answer.

Charles F. MacLean, for app’lts; Mr. Bronner, for resp’ts.

—There are three reasons why this order should be reversed: First, it appears that the defendants are fully able to answer without further particulars of the plaintiff’s claim than they already possess, secondly, they do not themselves deny that they have knowledge of the matters as to which they demand particulars; and, thirdly, their attorney’s affidavit as to such want of knowledge on the part of his clients is insufficient.

The action is brought to recover damages for the alleged breach of a contract whereby the defendants, who were merchants in France, agreed “to do all that they could that all goods which they should have to make delivery of in ¡New York should be delivered by the plaintiffs; ” and whereby the defendants further agreed not to represent or work for any other ¡New York firm than the plaintiffs and one other firm in articles in which the plaintiffs did business; and whereby the defendants further agreed not to obtain consignments in such articles for other houses or bring other houses into connection with manufacturers who made such goods.

The motion for a bill of particulars, was made before answer, and was based solely on affidavits by one of the-attorneys for the defendants. This gentlemen swears positively that his clients “ have not neglected or failed to carryout any agreement made with these plaintiffs, and that on account of their strict and full compliance with any and all agreements made by them, it is impossible to serve any answer with any degree of safety, unless it be known in what particular way the defendants violated any agreement., if they violated the same, with whom they violated it, and what particular amount of damages was sustained by these plaintiffs, in case of the alleged violation of the agreement-referred to in the complaint.”

There can be no difficulty in serving an answer if it be true, as the attorney thus states in substance, that the defendants have kept all their agreements with the plaintiff j and we are at a loss to understand how it follows that á. strict compliance on the part of his clients with their agree-

p. 530

merits, makes it impossible for them to plead with. safety. On the contrary, it would seem to make a preparation of an answer an extremely easy task.

The attorney also swears that from conversations had with the defendants “ he states that the defendants did not know and have no knowledge directly or indirectly,” as to how the claim for damages is made up. It will be observed, however, that he is quite careful not to say that either of the ■defendants has told him anything on the subject. From ■conversations with them “he states” that they have no knoweldge. This may be literally true, and yet his clients may never have given him any express assurance on the subject. In cases of this kind the affidavit of want of knowledge, should be made by the party and not by the attorney. Under our present practice, it has come to be unnecessarily common for attorneys to figure as affidavit makers; and an impression seems to prevail that because an attorney swears to a statement on information and belief, his affidavit is entitled to greater consideration than would be given to that of a layman whose only knowledge ■of the facts to which he deposes is derived from others. This view is erroneous. The true rule applicable to an application like the present is well expressed in the case of Gridley v. Gridley (J Civ. Pro. R., 215), which, although it arose at special term, was decided by Mr. Justice Bookes, long a member of the general term of the third department.

The learned judge says: “The affidavit on which the motion is here based is by the attorney. It should be by the defendant himself, as the purpose of a bill of particulars is to prevent surprise on the trial, which is a matter personal to the party raising the objection. Although the ■count or counts may be general in some or all of the particulars stated, the defendant may well know the specific .grounds of action. If so, a bill of particulars is unnecessary. This point should be covered by the affidavit of the party himself. There may be' cases, perhaps, where an affidavit by the attorney or agent might meet the requirements suggested, but this would be unusual, and in those cases the peculiarities of the case should be set forth.”

The respondent relies upon the case of Rice v. Rockefeller (19 N. Y. State Rep., 162), but there is nothing in that -decision nor in the authorities which were cited in that case •at special term which in anywise conflicts with the views we have expressed.

The order appealed from should be reversed, with costs .and disbursements.

Yak Brunt, Oh. J., concurs.