Casassa v. A. Cuneo Co.

MacLEAN, J. The plaintiff brought this action upon a complaint, verified by his attorney, -to recover the price of goods sold and delivered. In its amended answer the defendant alleged in each of its two separate defenses, as also in its counterclaim, that: “Said wine was not free from all defects, and good and marketable, but, on the contrary, was defective and unmarketable.” Thereafter plaintiff’s attorney applied to the court, upon an order to show cause running in the alternative, to make the amended answer more definite and certain or for a bill of particulars, by stating, among other things, the nature and particulars of said alleged defects, and obtained an order directing the service of a bill of particulars thereof. While the motion was in form offensive to practice (Kavanaugh v. Commonwealth Co., 45 Misc. Rep. 201, 91 N. Y. Supp. 967, affirmed in 99 App. Div. 620, 91 N. Y. Supp. 1099), the order itself was not; but, as it was obtained upon the affidavit of the plaintiff’s attorney deposing, ‘T have no knowledge of the matters so pleaded by the defendant, and neither has the plaintiff, as I verily believe,” it was improvidently granted. The statute (section 531, Code of Civil Procedure), as. now framed, has, indeed, rendered obsolete a large class of decisions, by empowering the court to direct a bill of particulars in any case upon application and notice; but as an application implies a statement verified upon knowledge, personal or from proper sources, more is requisite than an attorney’s deposition of his belief in his party’s ignorance. Order reversed, with $10 costs and disbursements, and motion denied, with $10 costs. All concur.