Worden v. New York City Railway Co.

MacLean, J. Appealing from an order directing a bill of particulars, the plaintiff urges, as improper, the inclusion therein, “ that in case the plaintiff has no knowledge with reference to any of the foregoing particulars, she shall state such lack of knowledge under oath in lieu thereof.” Authority thereto appears, however, in Ziadi v. Interurban St. R. Co., 97 App. Div. 137. She also urges as improper, the failure of the moving affidavit to state that the affiant had fully and fairly stated the case to counsel, with the name and [627] address of such counsel, as required by Rule 23 of Practice. While so determined by this court, notwithstanding the statement that he has been advised by his counsel (Bowman Cycle Co. v. Dyer, 23 Misc. Rep. 620, 622), it was so determined before issue joined, which is not this case. Here the defense and its merits have been exhibited by answer and, therefore, the rule does not apply. Scott and Gii/dersleeve, JJ., concur. Order affirmed, with costs and disbursements.