Mungall v. Bursley

Full title: HENRY MUNGALL and Others, Respondents, v . IRA L. BURSLEY, Appellant

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: May 1, 1900

51 App. Div. 380 (N.Y. App. Div. 1900)

64 N.Y.S. 674

Opinion

May Term, 1900.

Samuel R. Taylor, for the appellant.

John C. Coleman, for the respondents

Present — VAN BRUNT, P.J., RUMSEY, PATTERSON, INGRAHAM and HATCH, JJ.

PER CURIAM:

The action is brought to recover the purchase price of a certain quantity of merchandise sold by the plaintiffs, who are residents of and doing business at Dumferline, Scotland. By answer the defendant set up certain counterclaims alleging a breach of the contract on the part of the plaintiffs in selling to other persons goods of which the defendant was to have the exclusive right of purchase, and demanded damages for such breach of contract. The plaintiffs served a reply denying all the averments contained in the answer. The additional bill of particulars requires the defendant to furnish in detail the names of the persons, firms and corporations to whom the plaintiffs sold goods in violation of the agreement set up in the answer, the dates when such sales were made, and the place, nature, quantity, quality and dimensions in each case.

The proof was insufficient upon which to base the order. The affidavit is made by the attorney for the plaintiffs, and it is not therein shown that he possesses any knowledge of the facts upon which the application is based. The affidavit of an attorney will only be received when it is shown that he is the only person who has knowledge of the subject-matter of the litigation, or that it is not possible to obtain the affidavit of the party and that the attorney has received from the party full information of the subject-matter and makes full disclosure of what the information consists. Besides, there is nothing contained in the affidavit to show that the plaintiffs are not informed of all the subject-matter in respect to which a bill of particulars is asked. Such affidavits have frequently been condemned as insufficient upon which to found an order for a bill of particulars. ( Dueber W.C.M. Co. v. Keystone W.C. Co., 50 N Y St. Repr. 417; Mayer v. Mayer, 29 App. Div. 393; Cohn v. Baldwin, 74 Hun, 346.)

The order should, therefore, be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

PER CURIAM:

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.