Opinion
April Term, 1896.
Joseph A. Arnold, for the appellants.
Charles de H. Brower, for the respondent.
Present — VAN BRUNT, P.J., BARRETT, RUMSEY, O'BRIEN and INGRAHAM, JJ.
It appears by the affidavit upon which this motion was made that this defendant has not answered or demurred or otherwise moved in reference to the complaint since the same was served upon him. There is no allegation in the moving papers that a bill of particulars is necessary to enable the defendant to prepare his answer; and it is quite evident that it is not, as he can deny, either expressly or upon information and belief, the allegations contained in the complaint. We think, therefore, that this motion was prematurely made, and that at this stage of the action the facts necessary to be alleged and proved were not before the court to justify the granting of a bill of particulars.
The order should be 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.