Opinion
February, 1897.
Furlong White (Elmer S. White, of counsel), for appellant.
Hector M. Hitchings, for respondents.
The plaintiff appeals from an order of the General Term of the City Court, which modified an order of the Special Term upon its appeal from the latter requiring it to furnish a bill of particulars as to matters alleged in a general way in its complaint. It objects that the affidavit upon which the order was based is insufficient to authorize it; and if this be the case we must reverse the order. If the affidavit for a bill of particulars be sufficient we will not interfere with the discretion of the City Court in granting the order asked for; but the affidavit must be sufficient "to set the court in motion," and it is our duty to examine it to ascertain whether such is the fact. Dwight v. Germania L.I. Co., 84 N.Y. 493-507.
The alleged defect in the affidavit is that it does not show ignorance on the part of the defendants, or of the officers and agents of the defendant corporation, as to the matters concerning which the bill of particulars is asked. In the case cited the court of last resort examined the affidavit with reference to such an objection, and in numerous cases the General Term has adhered to the rule that want of such knowledge must be expressly shown and that if the affidavit be deficient in that respect it is wholly insufficient to entitle the moving party to a bill of particulars. It was so held where the truth of the allegations pleaded must necessarily be within the knowledge of the moving party, the charge being adultery. Carillo v. Carillo, 55 Hun, 360. "Although the count or counts may be general in some or all of the particulars stated, the defendant may well know the specific grounds of action. If so, a bill of particulars is unnecessary. This point should be covered by the affidavit of the party himself. * * * The affidavit by a party seeking a bill of particulars in an action for a tort should aver that he was not guilty of the offense and offenses charged in the complaint; and that he had no knowledge or information of the particular fact or facts upon which the adverse party relied to sustain the charges or as to which his proof would be directed. Gardiner v. Knox, 27 Hun, 500; Reamer v. Argus Co., MS. opinion; Orvis v. Dana, 1 Abb. N.C. 268." Gridley v. Gridley, 7 Civ. Pro. 215, 217-218.
"The attorney cannot know that the defendant needs the particulars which it claims, or that it has not in its possession all the facts which it seeks to compel its adversary to disclose." Dueber W.C.M. Co. v. Keystone W.C. Co., 50 N.Y. St. Repr. 417; 23 Civ. Pro. 44; 21 N.Y.S. 342; 66 Hun, 634, mem. It has even been held that an affidavit of the party that he has no knowledge or information on the subject is not enough. It should deny any suspicion or belief also. Holmes v. Jones, 13 Civ. Pro. 260.
In the present case the affidavit for the bill of particulars is made by the attorney of the defendants, who was also an officer of the defendant corporation. It does not state that the deponent has no knowledge of the matters as to which particulars are sought, nor that any inquiry has been made of the officers, agents or servants of the defendant corporation to ascertain if any of them possessed such knowledge; it merely states that "Deponent after carefully reading over said complaint is wholly unable to ascertain and determine upon what theory the said Albert E. Lazzaro is made a defendant in the action, whether as an officer of the Mercantile Supply Company or as a director therein, or a guarantor of the debt, or a person aiding and abetting said Mercantile Supply Company in a fraud. That it is necessary for the defendant Lazzaro to know whether the plaintiff claims that any of said statements were made by him in person or were made by other persons," and that "a bill of particulars is necessary to enable the defendants to meet the third allegation of the complaint," and that "It is necessary for the defendants to be informed what statements have been made," and so forth; none of which fairly implies that defendants do not know to what instances the averments of the plaintiff's pleadings refer. Dwight v. Germania L.I. Co., above.
The orders of the General Term and Special Term should be reversed, with costs.
McADAM and BISCHOFF, JJ., concur.
Orders of General and Special Terms reversed, with costs.