Dorgan v. Scheer ( 1900 )

O’Dwyer, J.

The plaintiffs allege .that they are ignorant of the particulars sought, and that it is necessary and material to the plaintiffs that they should have rendered to them a bill of particulars thereof, in order to properly resist the counterclaim of the defendant, but the affidavit fails to state that the means of obtaining the said information are beyond their reach, and that they have no means of obtaining the same, and that the information is entirely with the defendant. Such an allegation is material and necessary in an application for a bill of particulars, and without such an allegation the motion must fail because of such omission. Constable v. Hardenbergh, 27 N. Y. Supp. 1024; Bowman & Co. v. Dyer, 23 Misc. Rep. 620; 52 N. Y. Supp. 159; Wales Manufacturing Co. v. Lazzaro, 19 Misc. Rep. 477; 43 N. Y. Supp. 1110; Villiers v. Third Ave. R. R. Co., 22 Misc. Rep. 17; 48 N. Y. Supp. 614.

The order appealed from should be affirmed, with ten dollars’ costs, but with leave to the plaintiffs to apply anew'at Special Term, if so advised. ■

Fitzsimons, Ch. J., and Conlan, J., concur.

Order affirmed, with ten dollars’ costs, with leave to apply anew at Special Term, if so advised.