October Term, 1900.
Jacob Fromme, for the appellant.
Ernest Hall, for the respondent.
The order for an examination was asked for that the plaintiff might obtain facts necessary to enable him to serve a bill of particulars, and also that he might obtain evidence to use upon the trial. For the first purpose the order was clearly unnecessary. The facts stated in the affidavit are sufficiently explicit, so far as they go, to enable the plaintiff to frame his bill of particulars, and the other facts necessary for that purpose are within his own knowledge, and could not by any possibility be within the knowledge of the defendant. These allegations of the plaintiff's affidavit are made solely upon information and belief, and it appears that the information upon which the plaintiff has sworn to them was not derived from any one who had personal knowledge himself, so that there is in the affidavit no proof whatever of the facts upon which the plaintiff bases his application for this examination, because a statement upon information and belief is no evidence of the facts. ( Steuben County Bank v. Alberger, 78 N.Y. 252.) Such an affidavit is insufficient to obtain an order for examination. ( Jiminez v. Ward, 21 App. Div. 387.) It is also fairly to be inferred from what is stated in the affidavit that, although the persons who gave to the plaintiff the information which he regards as sufficient to enable him to swear to the facts, had no personal knowledge themselves of these facts, yet they had means of information which, if followed up, would enable the plaintiff to obtain proof of the matters as to which they informed him. The plaintiff should resort to that means of information before calling upon the defendants to be examined before the trial of the action.
The case is not within that of Tanenbaum v. Hilborn ( 44 App. Div. 89), because in that case it appeared affirmatively that the facts as to which the defendant was to be examined were not within the knowledge of the plaintiff, and that he could not obtain such knowledge of anybody but the defendant himself.
For these reasons the order appealed from must be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.
VAN BRUNT, P.J., PATTERSON, O'BRIEN and McLAUGHLIN, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.