St. Regis Paper Co. v. Santa Clara Lumber Co.

98 N.Y.S. 572 | N.Y. App. Div. | 1906

Chester, J. :

In the complaint it is alleged that “the defendant wrongfully and unlawfully took and carried away and converted to its own use . property of the plaintiff of the value of ten thousand dollars, consisting of-a large gang, planer, pulleys, shafting and other machinery.” The order appealed from requires the plaintiff to serve upon the defendant’s attorney a bill of particulars of the property mentioned in the complaint, which shall state in detail what the “ other machinery ” mentioned in. the complaint consisted of and that the exact item and value thereof be given. The order was granted solely upon the affidavit of one of the defendant’s attorneys. In that he. states that he “ has conferred with the officers of the defendant and.has been informed by them, and each of them, that they never took or converted any such ‘ other machinery ’ as is alleged in the complaint. That they have no knowledge or information as to what said allegations' refer to, and have been nnable to ascertain the same.” The only reason given why the affidavit is not verified by one of the officers of the defendant is “ that no officer of the defendant is at the date hereof within the County of Franklin.”

. In Toomey v. Whitney (81 App. Div. 441) the court says, with reference to an application for a bill of particulars : The rule of practice is well settled that motions of this kind must be founded 'upon the affidavit of the party, and the affidavit of the attorney alone is insufficient, unless stiine well-stated reason exists for a departure from this rule.” (Citing authorities.)

The fact that the defendant is a corporation does not not change the rule. (Dueber Watch-Case Mfg. Co. v. Keystone Watch-Case Co., 21 N. Y. Supp. 342.)

While there may be circumstances which will justify the court in granting an application for a bill of particulars upon the affidavit of the attorney of a party, yet no sufficient reason appears in the moving affidavit here for a departure from the rule stated. The reason assigned in the affidavit that no officer of the defendant was at the date of the verification of the affidavit within the county of Franklin was insufficient under the authorities. (Cohn v. Baldwin, 74 Hun, 346; Dueber Watch-Case Mfg. Co. v. Keystone Watch-Case Co., supra; Wolff v. Kaufman, 65 App. Div. 29.)

The attorney does not make it appear that he had personal knowledge of the essential facts. Hor does he assume to. have. If the officers of the defendant had no knowledge of what the term “ other machinery ” referred to, that fact should be shown other than by the unsworn statements of such officers to the attorney. Under such circumstances the affidavit of the attorney is insufficient. (Mungall v. Bursley, 51 App. Div. 380.)

The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs, but with leave to the defendant to renew its application upon new or additional papers.

All concurred; Kellogg, J., not sitting.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, with leave to defendant to renew its application upon new or additional papers.