Opinion
May Term, 1897.
John Vernou Bouvier, Jr., for the appellant.
S.L. Samuels, for the respondent.
The action was brought to recover damages for an alleged libel. The bill of particulars granted was with reference to certain allegations of special damage. No answer had been served when the order appealed from was made. The defendant stated in his affidavit used on the motion that a bill of particulars was necessary and material to his defense in the case, and to enable him to answer, as he was advised by his counsel.
The order was prematurely granted if based upon the ground that it was necessary for the purpose of the defense of the case. It could not be said any defense would be made until an issue was raised by the service of an answer. The order cannot be supported upon this ground. ( Watertown Paper Co. v. West, 3 App. Div. 451. )
The only ground upon which the order could be made was that it was necessary to enable the defendant to answer. The defendant stated that he was advised by counsel that it was so necessary, but we are of the opinion that such advice was not well considered. The defendant stated that he was ignorant of the particulars of the losses alleged, and had no means of knowing of any losses suffered by the plaintiff. This being assumed as true, we see no reason why he could not, without a bill of particulars, have denied any knowledge or information sufficient to form a belief as to the allegations in question. (Code Civ. Proc. § 500.) That section did not require him to deny on information and belief. He might properly deny in the language of the section, and was not obliged to go further.
We think this order was improperly granted, and should be reversed, with ten dollars costs and disbursements.
PATTERSON, O'BRIEN, INGRAHAM and PARKER, JJ., concurred.
Order reversed, with ten dollars costs and disbursements.