Hoeninghaus v. Chaleyer

Bartlett, J. There are three reasons why this order should be reversed: First. It appears that the defendants are fully able to answer without further particulars of the plaintiff’s claim than they already possess; secondly, they do not themselves deny that they have knowledge of the matters as to which they demand particulars; and, thirdly, their attorney’s affidavit as to such want of knowledge on the part of his clients is insufficient. The action is brought to recover damages for the alleged breach of a contract whereby the defendants, who were merchants in France, agreed “to do all that they could that all goods which' they should have to make delivery of in Hew York should be delivered by the plaintiffs;” and whereby the defendants further agreed not to represent or work for any other Hew York firm than the plaintiffs, and one other firm, in articles in which the plaintiffs did business; and whereby the defendants further agreed not to obtain consignments in such articles for other houses, or bring other houses into connection with manufacturers who made such goods. The motion for a bill of particulars was made before answer, and was based solely on affidavits by one of the attorneys for the defendants. This gentleman swears positively that his clients “have not neglected or failed to carry out any agreement made with these plaintiffs, and that, on account of their strict and full compliance with any and all agreements made by them, it is impossible to serve any answer with any degree of safety, unless it be known in what particular way the defendants violated any agieement, (if they violated the same,) with whom they violated it, and what particular amount of damages was sustained by these plaintiffs in case of the alleged violation of the agreement referred to in the complaint.” There can be no difficulty in serving an answer, if it be true, as the attorney thus states, in substance, that the defendants have kept all their agreements with the plaintiff; and we are at a loss to understand how it follows that a strict compliance on the part of his clients with their agreements makes it impossible for them to plead with safety. On the contrary, it would seem to make a preparation of an answer an extremely easy task. The attorney also swears that, from conversations had with the defendants, “he states that the defendants did not know, and have no knowledge, directly or indirectly, ” as to how the claim for damages is made up. It will be observed, however, that he is quite careful not to say that either of the defendants has told him anything on the subject. From conversations with them “he states” that they have no knowledge. This may be literally true, and yet his clients may never have given him any express assurance on the subject. In cases of this kind the affidavit of want of knowledge should be made by the party, and not by his attorney. Under our present practice, it has come to be unnecessarily common for attorneys to figure as affidavit makers; and an impression seems to prevail that, because an attorney swears to a statement on information and [817] belief, his affidavit is entitled to greater consideration than would be given to that of a layman, whose only knowledge of the facts to which he deposes is derived from others. This view is erroneous. The true rule applicable to an application like the present is well expressed in the case of Gridley v. Gridley, 7 Civ. Proc. R. 215, which, although it arose at special term, was decided by Mr. Justice Bocees, long a member of the general term of the Third department. That learned judge says: “The affidavit on which the motion is here based is by the attorney. It should be by the defendant himself, as the purpose of a bill of particulars is to prevent surprise on the trial, which is a matter personal to the party raising the objection. 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. There may be cases, perhaps, where an affidavit by the attorney or agent might, meet the requirements suggested, but this would be unusual, and in those cases the peculiarities of the case should be set forth.” The respondent relies upon the case of Rice v. Rockefeller, 1 N. Y. Supp. 222, 2 N. Y. Supp. 867, but there is nothing in that decision, nor in the authorities which were cited in that case at special term, which in any wise conflicts with the views we have expressed. The order appealed from should be reversed, with costs and disbursements. Van Brunt, P. J„ concurs.