Watertown Paper Co. v. West — 73 N.Y. St. Rep. 846

Majority

p. 846

Watertown Paper Company et al., App’lts, v. George West et al., Resp’ts.

(Supreme Court, Appellate Division, First Department,

Filed April 10, 1896.)

Headnote

Bill of particulars—When granted.

Where there is no allegation in the moving papers that a bill of particu- , lars is necessary to enable the defendant to prepare his answer, his motion for a bill of particulars, made before answering, demurring or otherwise; moving in reference to the complaint, is premature.

Appeal from an order granting a motion for a bill of particulars.

J. A. Arnold, for app’lts; 0. De H. Brower, for resp’L

It appears by the affidavit upon which this motion was made that this defendant has not answered or demurred or otherwise moved in reference to the complaint since the-same was served upon him. There is no allegation in the moving-papers that a bill of particulars is necessary to enablé the defendant to prepare his answer; and it is quite evident that it is not, as he can deny, either expressly pr upon information and belief, the-allegations contained in the complaint. We think, therefore, that this motion was prematurely made, aud that, at this stage of the-action, the facts necessary to be alleged and proved were not before the court to justify the granting of a bill of particulars.

The order should be reversed, with $10 costs and disbursements,, and the motion denied, with $10 costs.