Sawyer v. Bennett — 44 N.Y. St. Rep. 701

Majority

p. 701

Lucius W. Sawyer, Resp’t, v. James Gordon Bennett et al., App’lts.

(Supreme Court, General Term, First Department,

Filed February 18, 1892.)

Headnote

Bill of fabticijlabs—Libel.

In an action for libel where the complaint alleges that “many persons have in consequence thereof and still do refuse to employ or trade with this plaintiff,” a motion for a bill of particulars of the names and addresses ■of such persons will not be granted before issue joined in the absence of :an affidavit showing its necessity and that defendant has no knowledge of ■such persons.

Appeal from order denying motion for a bill of particulars.

John Townshend, for app’lts ; Fugene Frayer, for resp’t

This is an appeal from an order denying defend.-ant's motion for a bill of particulars, and a further extension of time to answer with leave to defendant to renew his motion for •the bill of particulars, after the cause is at issue, upon proper affidavits.

The action was for alleged libels. The complaint set forth nine alleged causes of action, and among the allegations was one that “• many persons have in consequence thereof, and do still refuse to employ or trade with this plaintiff.”

What was sought by the motion was a bill of particulars of the names and addresses of the persons who, it is alleged in the complaint, in consequence of the alleged libel, have refused to trade with plaintiff. The motion was denied with costs to abide the event, with leave to renew after issue joined upon proper affidavits, for the reasons as stated by the learned judge below that no affidavit was presented showing sufficient reasons for the motion then being granted; that the case was not at issue, that it did not appear that the defendant was without knowledge of the persons who refused to employ plaintiff, and that the particulars asked for do not appear to be necessary to enable the defendant to answer. The disposition made on the motion by the judge was proper, unless the defendant had an absolute right at any stage of •the case to the bill of particulars sought. It was not shown nor does it appear that such particulars were necessary to enable defendant- to answer, and the other objections as to the sufficiency of the affidavits used on the motion, and referred to by the judge, ■are apparent. It has been frequently held by this court, that a mere application for a bill of particulars will not be granted, unless facts are shown by proper affidavits that the party is entitled to such bill of particulars, and where, as here, it is evident that the particulars sought are not necessary to enable the defendant to

Concurrence

p. 702

answer, but may be required upon the trial, proper affidavits as-the basis of the application must be presented. We are of opinion, therefore that the disposition made of the motion was proper, and. that the order appealed from should be affirmed, with ten dollars-costs and disbursements.

Van Brunt, P. J., concurs.

I concur on the ground that it does not appear that the furnishing of a bill of particulars is necessary now-After issue joined it may be proper to renew the application, and therefore the order made below was right.