Worden v. New York City Railway Co.

Appellate Terms of the Supreme Court of New York

Worden v. New York City Railway Co.

48 Misc. 626, 96 N.Y.S. 180

CourtAppellate Terms of the Supreme Court of New York

DecidedJuly 1, 1905

StatusPublished

This text of 48 Misc. 626 (Worden v. New York City Railway Co.) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Worden v. New York City Railway Co., 48 Misc. 626, 96 N.Y.S. 180 (N.Y. Ct. App. 1905).

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Opinion

MacLean, J.

Appealing from an order directing a bill of particulars, the plaintiff urges, as improper, the inclusion therein, “ that in case the plaintiff has no knowledge with reference to any of the foregoing particulars, she shall state such lack of knowledge under oath in lieu thereof.” Authority thereto appears, however, in Ziadi v. Interurban St. R. Co., 97 App. Div. 137. She also urges as improper, the failure of the moving affidavit to state that the affiant had fully and fairly stated the case to counsel, with the name and [627]*627address of such counsel, as required by Rule 23 of Practice. While so determined by this court, notwithstanding the statement that he has been advised by his counsel (Bowman Cycle Co. v. Dyer, 23 Misc. Rep. 620, 622), it was so determined before issue joined, which is not this case. Here the defense and its merits have been exhibited by answer and, therefore, the rule does not apply.

Scott and Gii/dersleeve, JJ., concur.

Order affirmed, with costs and disbursements.

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MacLean, J.

Appealing from an order directing a bill of particulars, the plaintiff urges, as improper, the inclusion therein, “ that in case the plaintiff has no knowledge with reference to any of the foregoing particulars, she shall state such lack of knowledge under oath in lieu thereof.” Authority thereto appears, however, in Ziadi v. Interurban St. R. Co., 97 App. Div. 137. She also urges as improper, the failure of the moving affidavit to state that the affiant had fully and fairly stated the case to counsel, with the name and [627]*627address of such counsel, as required by Rule 23 of Practice. While so determined by this court, notwithstanding the statement that he has been advised by his counsel (Bowman Cycle Co. v. Dyer, 23 Misc. Rep. 620, 622), it was so determined before issue joined, which is not this case. Here the defense and its merits have been exhibited by answer and, therefore, the rule does not apply.

Scott and Gii/dersleeve, JJ., concur.

Order affirmed, with costs and disbursements.

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Bluebook (online)

48 Misc. 626, 96 N.Y.S. 180, Counsel Stack Legal Research, https://law.counselstack.com/opinion/worden-v-new-york-city-railway-co-nyappterm-1905.

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