Wolff v. Kaufman

72 N.Y.S. 500 | N.Y. App. Div. | 1901

Per Curiam :

Two conclusive reasons appear why this order should be reversed : (1) The affidavit, which is made by the attorney for the defendant, states in terms that the defendant has fully and fairly stated his case and that he has advised him that he has a good and substantial defense upon the merits. This application is for a bill of particulars to enable the defendant to plead, but if his attorney has become possessed, as he swears he is, of sufficient facts showing a good defense to plaintiff’s cause of action, then he does not need a bill of particulars to enable him to plead ; (2) the affidavit is made by the attorney,.and his statement of the reason why he makes it instead of the defendant is that the latter is not now within the city, county and State of Hew York where deponent resides. This is entirely insufficient as a statement showing the inability of the defendant to make the affidavit in person. It would be entirely true if the defendant had crossed the river into Jersey City and returned immediately after the affidavit was made. Applications of this character are required to be made by the party, and the observations made by Mr. Justice Bartlett on Hoeninghaus v. Chaleyer (22 N. Y. St. Repr. 528) have appropriate application to the facts presented upon this appeal. The bill of particulars which has been served seems to be insufficient in specifications, and quite likely the defendant may show himself entitled to a further bill before the trial of the action,

It follows that the order should be reversed, with ten dollars costs and disbursements to the appellant, and motion denied, with ten dollars costs.

Present — Van Brunt, P. J., Patterson, Ingraham, Hatch and Laughlin, JJ.; Ingraham, J., concurred in result.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.