Cohn v. Baldwin — 56 N.Y. St. Rep. 379

Majority

p. 379

Jacob Cohn, Resp’t, v. Frank E. Baldwin, Impleaded, etc., App’lt.

(Supreme Court, General Term, Third Department,

Filed December 1893.)

Headnote

1. Bill of Particulars—Affidavit.

In an application for a bill of particulars, the affidavit of the defendant, unless imposible to be obtained, should be procured.

8. Same—When not granted.

Where it appears that the demand of plaintiff, contained in the complaint,embraces all the dealings between the parties, and are all contained in the books of account and papers of defendant, a bill of particulars will not be granted.

Appeal from an order denying a motion for a bill of particulars,

Mills & Bridge, for app’lt; Mark Cohn, for resp’t

We think the affidavit on which the motion for a bill of particulars was made, insufficient, being made by the attorney of one of the defendants. The only reason stated why the affidavit of the party was not obtained is as follows : “ That the reason why this affidavit is not made by said defendant is that said defendant is not a resident of or within the county of Albany, which is the county where deponent resides and has his office.” By the provisions of § 525, Code of Civil Procedure, a verification to a pleading may be made by the attorney of a party, when absent from the county where the attorney resides ; but that provision applies only to a verification of a pleading, and not to an affidavit made to procure a bill of particulars. In this case no sufficient reason is set forth why the defendant did not make the affidavit. For all that appears he may have been in another county of the state where his affidavit could be readily obtained. On such a motion the affidavit of the defendant unless impossible to be obtained should be procured. The affidavit of the attorney made herein does not show that defendant required any bill of particulars. See Gridley v. Gridley, 7 Civ. Pro., 215 ; Hoeninghaus v. Chaleyer, 22 St. Rep., 528 ; Blake v. Harrigan, 33 id., 210.

Again, plaintiff in his affidavit swears “ that the demand of plaintiff contained in the complaint embraced all the dealings between plaintiff and defendants and are all contained in the books of account and papers of defendants. That the only information in the possession of plaintiff as to the said bets and wagers is derived from statements furnished to him by the defendants. That it will not be possible for the plaintiff to furnish all the particulars required by the defendants unless the defendants are required to produce and deposit their books of account and papers containing the dealings between plaintiff and defendants in some proper and convenient place and permit the plaintiff or his at

p. 380

torney or some suitable person authorized by plaintiff to make an inspection of said books and papers and to make extracts of the entries therein.”

These statements made in the plaintiff’s affidavit are not denied. Such being the facts of the case a bill of particulars should not be ordered. Train v. Friedman, 4 Civ. Pro., 109 ; Isaac v. Wilisch, 69 Hun, 339 ; 53 St. Rep., 360 ; Fink v. Jetter, 38 Hun, 163 ; Wigand v. Dejonge, 18 id., 405.

The order should be affirmed, with costs and disbursements.

Mayham, P. J., concurs. Herrick, J-, not acting.