Opinion
March Term, 1897.
Wales F. Severance, for the appellant.
David E. Grossman and Moses Esberg, for the respondent.
Present — VAN BRUNT, P.J., RUMSEY, PATTERSON, O'BRIEN and INGRAHAM, JJ.
The complaint contains two causes of action, one for slander and the other for libel. Upon refusal to comply with a demand, the plaintiff was required by the order appealed from to furnish a bill of particulars, before answer, of the place or places where the alleged slander mentioned in the first cause of action took place or was published; the names of the "divers other persons, friends and relatives," referred to in the first cause of action; the place where the alleged libel referred to in the second cause of action was published and the date of publication, and the name or names of any persons to whom such alleged libel was published. The motion was granted upon the complaint and the affidavit of the defendant alone, in which there was no denial of the charges of the complaint, but the following allegation of ignorance as to the matters charged: "That deponent has no knowledge or information of the divers other persons, friends and relatives of the said Fannie Stone referred to aforesaid, nor of the names of the persons to whom plaintiff claims or may claim that the alleged libel aforesaid was published."
Apart from the question of delay in moving and the good faith of the application, which is assailed, we think the moving affidavit was entirely insufficient and that the particulars asked for were not necessary to enable to defendant to interpose an answer. Except upon facts showing necessity therefor, it is not usual to require a plaintiff to furnish a bill of particulars before joinder of issue. We do not think that any such showing was made, or that the defendant required the particulars sought for the purpose of answering. The motion should, therefore, have been denied.
The order is accordingly reversed, with ten dollars costs and disbursements, and the motion denied with ten dollars costs.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.