Driscoll v. Parker Pen Co.

PAGE, J. An order had been entered requiring plaintiff to serve a verified bill of particulars.. Upon plaintiff’s failure to comply a motion was made to preclude the plaintiff from giving evidence. On July 31, 1911, an order was entered denying this motion, upon condition that the plaintiff furnish the bill of particulars within two days and pay $10 costs. The plaintiff failed to comply with the latter order, and on Au [252] gust 31, 1911, an order was entered precluding the plaintiff from giving testimony, with $10 costs. The costs have not been paid. Plaintiff on March 7, 1912, moved to be allowed to serve an amended complaint. From the order entered upon this motion, and from an order denying its motion to resettle the former order, the defendant takes separate appeals. [ 1 ] There is no merit in the appeal from the latter order. The defendant sought to have certain filed papers to which reference was made in the opposing affidavit recited in the order. It does not appear that these filed papers were submitted to the court on the hearing; therefore the court properly refused to recite them. [2] The motion for leave to amend was upon the affidavit of the managing, clerk in the office of the plaintiff’s attorney, and no reason was given for failure to obtain the affidavit of the plaintiff, and the amended complaint was not verified by the plaintiff. This was entirely insufficient. The motion could not be based upon the affidavit of the plaintiff’s attorney under such circumstances (Rhodes v. Lewin; 33 App. Div. 369, 54 N. Y. Supp. 106; Ryan v. Duffy, 54 App. Div. 199, 66 N. Y. Supp. 649; Mutual Loan Ass’n v. Lesser, 81 App. Div. 138, 80 N. Y. Supp. 1112), most certainly, therefore, not upon that of a managing clerk. The plaintiff urges that under section 723 the amendment should be allowed “in furtherance of justice.” We do not feel that this section authorizes the court to grant the relief asked upon wholly insufficient papers. The order granting leave to serve an amended complaint will be reversed, with $10 costs and disbursements, and the appeal from the order denying the motion to resettle the order will be dismissed, without costs. GUY, J., concurs. GERARD, J., concurs in result.