Sidney B. Bowman Cycle Co. v. Dyer

The defendants appeal from an order of the General Term of the City Court, affirming an order of the Special Term granting plaintiff’s motion for certain particulars of a counterclaim interposed by defendants. Issue had not been joined at the time of the motion; and the relief sought could, therefore, only, be granted on the ground that the particulars were necessary, in order to enable the plaintiff-corporation to frame its reply. American Credit & Ind. Co. v. Bondy, 17 App. Div. 328. Recognizing the rule that a bill of particulars, granted by the City Court, is not reviewable by the Appellate Term, unless it clearly transcends the power of the court, as defined by the general course of practice in respect to bills of particulars (see Witkowski v. Paramore, 93 N. Y. 467; Lawrence v. Samuels, 20 Misc. Rep. 279; Kreizer v. Allaire, 16 id. 6; Howell v. Mills, 53 N. Y. 322; Livermore v. Bainbridge, 56 N. Y. 72; Cohn v. Baldwin, 141 N. Y. 563), we must examine the affidavit to ascertain whether it was sufficient to confer jurisdiction upon the court to order a bill of particulars. Wales Mfg. Co. v. Lazzaro, 19 Misc. Rep. 477, 43 N. Y. Supp. 1110. The affidavit is made by Sidney B. Bowman, the president and general manager of the plain*622tiff-corporation, and states that “ he has knowledge or information sufficient to form a belief as to the items of damage and loss of revenue and expenses, alleged to have been incurred by the said club.” The counterclaim is not interposed against the president and general manager personally, but against the plaintiff-corporation. The absence of knowledge or information on the part of Mr. Bowman, who is one of plaintiff’s officers, does not imply that some other officer or agent of the corporation may not be fully cognizant of all the matters that are alleged as the basis of defendants’ counterclaim. The affidavit should go further and state that the plaintiff cannot through any of its officers, agents and servants acquire the information. It should appear from the affidavit that the means of obtaining the information required are beyond the reach of the plaintiff. Wales Mfg. Co. v. Lazzaro, supra; Constable v. Hardenbergh, 76 Hun, 438.

While Mr. Bowman avers that he is advised by bis counsel of the necessity of being apprised of Pertain items by a- bill of particulars, in order to properly prepare a reply to the counterclaim, he does not swear that he has fully and fairly stated the case to his counsel, nor does he give the name and residence of such counsel. It must, therefore, be observed that the affidavit fails .to comply with the provisions of rule 23 of the General Rules of Practice, which is to the effect that “ whenever it shall be necessary in any affidavit to swear to the advice of counsel, the party shall * •* * . swear that he has'fully and fairly stated the case to his counsel, and shall give the ■name and residence of such counsel.”

We think the mtiving affidavit is fatally defective and insufficient to authorize the order for a bill of particulars. The order should be reversed and the motion denied, with costs.

Beekhah, P. J., and Giegerioh, L, concur.

Order reversed and motion denied, with costs.