FORM No. 1061.

Order precluding the giving of evidence, upon failure to furnish the items of the account.69

[Title of action.]

At a Special Term [etc., as in
Form 820, p. 1174].

[After appropriate recitals of the moving papers, as in Form 820, p. 1174:]

ORDERED, that the plaintiff be and he is hereby precluded from giving evidence of the account alleged in the complaint herein [as the first cause of action], unless plaintiff serves a [verified] copy thereof upon defendant's attorney within [ten] days from the service of this order, and pays ten dollars costs of this motion within the same period.

FORM No. 1062.

Notice of motion or order to show cause upon application to strike out demand.70

[As in Form No. 815 or No. 818, basing the notice of motion upon the pleadings and the demand—and the order to show cause upon same papers, and an affidavit as in Form No. 816 stating relief sought as follows:] for an order striking out or nullifying such demand on the ground that it is improper and unauthorized.

II. BILL OF PARTICULARS.

FORM No. 1063.

Affidavit to obtain order for bill of particulars.71

[Title of court and action.]

[Venue.]

Y. Z., being duly sworn, says:

I. That he is defendant in this action" [or if the affidavit be made by another than defendant, state reason, and his relation to the cause, and show means of knowledge].

It is necessary to procure an order precluding the giving of evidence of the account, notwithstanding the language of Code Civ. Pro., § 531, that the party "is precluded from giving evidence of the account." Gebhard v. Parker, 120 N. Y. 33. Otherwise evidence of the account will be admitted, even though there has been failure to comply with the demand. Barton r. Sidway, 72 Hun, 435, 25 N. Y. Supp. 779.

70 Where a demand has been served, in an action which the adverse party claims is not on an account, he has a

*

right to test the question by a motion before the expiration of the ten days. Main r. Pender, 88 App. Div. 237, 85 N. Y. Supp. 428; Dowdney v. Volkening, 37 N. Y. Super. 313. Or, at a date subsequent to the expiration of the ten days. Stone v. Hudson Valley R. R. Co., 47 Misc. 5, 95 N. Y. Supp. 220.

71 A verified pleading is, of course, available as an affidavit upon the motion. Newman v. West, 101 App. Div. 288, 91 N. Y. Supp. 740.

72 Without excuse shown for the nonproduction of the party's affidavit,

day of

II. [State condition of the cause, for instance, thus:] That the complaint herein was served on deponent [or, on the attorney of this deponent] on the 19 and that he has appeared in the action, but has not answered [or, that issue herein was joined by the service of deponent's answer on the day of

19 . "

III. That the cause of action alleged in the complaint is [here state it very briefly], and said cause of action is alleged generally in the complaint, and without stating the particulars of the claim [or, the particulars of the property which the plaintiff seeks to recover-or, the particulars of the injuries suffered by plaintiff.]

IV. [If previous demand for particulars has been made, allege that fact and default, as bearing upon an award of costs.]

V. That defendant [intends in good faith to defend this action, and that he] is ignorant of the particulars of the claim?3 [or, of the breaches etc., as above] alleged by the plaintiff, and that it is necessary and material to his defense in this cause and in order to enable him to properly prepare for trial [or, to enable to answer herein], that he shall have delivered to him a bill of the particulars thereof specifying [state particulars desired]; as

74

the motion cannot be granted on an affidavit of the attorney. Van Olinda v. Hall, 82 Hun, 357, 31 N. Y. Supp. 495; Gallerstein r. Manh. Ry. Co., 27 Misc. 506, 58 N. Y. Supp. 374; Mayer v. Mayer, 29 App. Div. 393, 51 N. Y. Supp. 1079; Stevens v. Smith, 38 App. Div. 119, 56 N. Y. Supp. 540.

It must be shown that the attorney is the only person having knowledge of the subject-matter, or that it is impossible to obtain the party's affidavit and that the attorney has received from the party full information of the subject-matter and makes full disclosure of what the information consists. Mungall v. Bursley, 51 App. Div. 380, 64 N. Y. Supp. 674.

That the party is not within the county of the attorney's residence is an insufficient reason for presenting attorney's affidavit. St. Regis Paper Co. r. Santa Clara Paper Co., 112 App. Div. 775, 98 N. Y. Supp. 572; Cohn v. Baldwin, 74 Hun, 346, 26 N. Y. Supp. 457; Wolff r. Kaufman, 65 App. Div. 29, 72 N. Y. Supp. 500. The affidavit should be made by some one competent to depose as to the principal's ignorance, and the necessity for the bill. Canonico v.

Cunard S. S. Co., 49 Misc. 92, 96
N. Y. Supp. 499.

73 It should appear from the facts shown in the pleadings, or the moving affidavit, that the moving party is not only ignorant of the particulars, but that the facts are peculiarly within the knowledge of the adversary. Isaac v. Wilisch, 69 Hun, 339, 23 N. Y. Supp. 589; Kirby v. Kirby, 34 App. Div. 24, 54 N. Y. Supp. 1074; Phelan v. Roberts, 21 App. Div. 603, 47 N. Y. Supp. 780; Am. Transfer Co. v. Borgfeldt. 99 App. Div. 470, 91 N. Y. Supp. 209.

74 If the application is made before answer, it must appear that defendant lacks sufficient knowledge of the particulars to enable him to properly frame his defense. See Schultz c. Rubsam, 104 App. Div. 20, 93 N. Y. Supp. 334; Wolff r. Kaufman, 65 App. Div. 29, 72 N. Y. Supp. 506; McClellan . Duncombe, 26 App. Div. 353, 49 N. Y. Supp. 679; Am. Credit Ind. Co. v. Bondy, 17 App. Div. 328, 45 N. Y. Supp. 267. If he is ignorant of the particulars of the plaintiff's claim, thereby shows that he is in a position to put the allegations in issue by means of a denial of any

he is advised by T. Z., his counsel, who resides at No. in the city of

and verily believes. †

VI. [If an order to show cause is asked for] That no previous application for a bill of particulars has been made herein [except, etc.; see p. ],

[Also state reason for asking order instead of giving notice. Id.]

VII. [If laches appear, allege facts to excuse.]75

[If extension of time to plead is asked no oath to merits seems possible or proper.]76

FORM No. 1064.

Order to furnish a bill of particulars (General Form).77

Upon the pleadings [or, the summons and complaint] in this action, and upon reading and filing the notice of motion, dated 19 and the affidavit of Y. Z., the defendant herein, 19 thereunto annexed

verified on the
[etc., as in Form 820];
ORDERED: 1. That the [plaintiff], on or before the

19 78 deliver to the [defendant] a [verified]79 bill of

particulars of the demand upon which this action is brought [or, of the counter-claim set up in the answer], specifying [here indicate particulars80 as in Forms 1065 to 1073 (below)].

2. That if the plaintiff has no knowledge with reference to any of the foregoing particulars, he shall state such lack of knowledge under oath in lieu thereof.81

3. That upon his failure to serve a bill of particulars as hereinbefore required, the plaintiff is precluded from giving evidence of the part or parts of his affirmative allegations of which particulars have not been delivered.& 82

83

In the meantime and until service of said bill of particulars, let all further proceedings on the part of the [plaintiff] be stayed, [and if ordered to enable defendant to plead] and let the [defendant] have days further time to answer [or, reply], demur, or take such other proceedings as he may be entitled to, after the service of such bill.

[If previous demand was made and disregarded may add costs of motion.]

Enter: [signature of judge by initials of name and title.]

FORMS NOS. 1065-1073.-Statement of particulars suitable to be inserted in foregoing Form.

FORM No. 1065.

In an action on a breach of contract.

[After the* in Form 1064] — of the breaches of the bond, on which this action is brought.

[As to character of contract:] Whether the alleged agreement was oral or written; if oral, with whom made, when, and where; if in writing, to furnish a copy thereof.84a

A bill of particulars need not be verified unless the order requiring it so directs. Shankland v. Bartlett, 15 N. Y. Civ. Pro. Rep. 24, 1 N. Y. Supp. 458. And should not be required to be verified if the pleadings are not. Brauer v. Oceanic Steam Nav. Co., 26 App. Div. 623, 49 N. Y. Supp. 937.

80 A sweeping clause specifying no details is usually improper. Hubbard v. Otis, 17 Wkly. Dig. 348.

For the form of an order for bill of particulars of evidence of fraud or false representations in procuring life insurance - see Dwight v. Germania Life Ins. Co., 84 N. Y. 493.

For an order for particulars of a fraud in general assignment for benefit of creditors. Claflin v. Smith, 13 Abb. N. C. 205.

For an order for particulars of

charge of fraud in conspiring to withhold evidence. Leigh v. Atwater, 2 Abb. N. C. 419.

81 This requirement held proper in Ziadi v. Interurban St. Ry. Co.. 97 App. Div. 137, 89 N. Y. Supp. 606; Worden v. New York City Ry. Co., 48 Misc. 626.

82 Oatman v. Watrous, 99 App. Div. 254, 90 N. Y. Supp. 940.

An order is necessary, in order to preclude evidence after default. See Gebhard v. Parker, 120 N. Y. 33.

83 This clause is necessary in order to effect a stay. Vermont Academy of Medicine v. Landon, 2 Wend. 621.

84 The stay does not enlarge time to plead. Volume I, p. 413.

84a Proper where a defendant has denied any knowledge of the contract. Rhodes v. Adams, 113 App. Div. 304.

[Action to recover for alleged extra work; substitute in Form 1064] a specific statement of the various items of the work done, with the materials furnished, for which plaintiff seeks to recover, and the reasonable value of each thereof.

[Breach of plaintiff's exclusive right of sale:] the names of the persons, firms and corporations to whom defendant sold goods in violation of the alleged agreement, the dates when such sales were made, and the place, nature, quantity and quality of each sale.

FORM No. 1066.

In action for money paid, etc.

[After the *in Form 1064] of the dates of the alleged purchases and sales, the kinds and amounts of goods alleged to have been purchased and sold, the names of the persons and firms to and from whom such sales and purchases were made, the amounts received and paid by his said firm in making said purchases and sales, and where and when each such purchases and sales were made, and when and where the goods so purchased and sold were received and delivered, and the names of the persons or firms to whom and from whom goods were delivered and received.

FORM No. 1067.

In action for negligence.85

-of the number of the car, and the names or numbers of the conductor and gripman, if known to plaintiff; the direction in which said car was going, and the particular place where and hour when plaintiff received the alleged injury. [As to plaintiff's injuries: an itemized statement of the expenses plaintiff has been put to for medical and surgical treatment, the exact number of days plaintiff was confined to his bed, and the amount of the wages he has been thereby prevented from earning, the nature and location of such of plaintiff's internal injuries as he is informed and believes are permanent.80

FORM No. 1068.

In action for conversion.

[After the in Form 1064] of the goods, chattels, fixtures and other personal property alleged to have been carried away and

& See Steinau v. Met. St. Ry. Co., 63 App. Div. 126, 71 N. Y. Supp. 256; Curtin r. same, 65 App. Div. 610, 72 N. Y. Supp. 580; English v. Westch. Elec. R. Co., 69 App. Div. 576, 75 N. Y. Supp. 45; Levy v. New York City Ry. Co., 110 App. Div. (Memo.)

See, as between master and servant. Mullen v. Hall, 51 Misc. 59.

86 See an insufficient compliance with directions to give such particulars in Quinn v. Fitzgerald, 87 App. Div. 539, 84 N. Y. Supp. 728.