
    Blanche Kirkland, Plaintiff, v. George B. Kirkland, Defendant.
    (Supreme Court, St. Lawrence Special Term,
    December, 1902.)
    (Bill of particulars — When an attorney for a party may make the moving affidavit.
    The rule of practice, that a motion to procure a bill of particulars must be upon the affidavit of the party and not upon that of his attorney, is not absolute.
    Where a complaint for divorce was entirely indefinite as to the time, place, or person, when, where, or with whom, the adulteries ■charged therein were committed, and ail charges were denied by a verified answer, such a motion was granted upon the defendant’s attorney’s affidavit that he could, not safely go to trial without particulars as to the times, places and persons — the court considering that, as the case was one where a bill should be ordered and the defendant clearly could have no knowledge of the particulars superior to that of his attorney, the attorney was the better judge whether the case could safely be tided without them.
    Motion for a bill of particulars in an action for divorce.
    Arthur T. Johnson, for plaintiff.
    E. 0. Hurlburt (Lawrence Russell, of counsel), for defendant.
   Kellogg, J. M., J.

The complaint charges the defendant with adultery at divers times during the years 1900 and 1901, in the town and village of Gouverneur, with inmates of houses of prostitution. It is entirely indefinite as to time, place and person with whom the adultery is alleged to have been committed. The verified answer admits the marriage, and that there is no issue, and denies every other allegation of the complaint. Upon the pleadings and the affidavit of the defendant’s attorney that he cannot safely proceed to trial until he is furnished with the particulars of the alleged offense, the defendant moves for a bill of particulars as to the times, places and with whom the alleged adultery was committed. The plaintiff objects to the hearing and granting of the motion solely upon the ground that the moving affidavit is made by the attorney and not by the defendant. As this objection is the only one argued it is the only one that will be considered in disposing of the motion.

The Code of Civil Procedure, section 531, authorizes the court to direct a bill of particulars, but makes no requirement that it must be upon the .affidavit of the party or otherwise. The authorities, however, are quite uniform that the application must be made upon the affidavit of the party to the action and not his attorney. Cohn v. Baldwin, 74 Hun, 346.

The reason of this rule seems to be that as the motion rests in the sound discretion of the court upon the facts shown, the attorney,. ordinarily, cannot swear as to what knowledge or information his client has, and that the affidavit of the party himself furnishes the court the best information upon that subject. In the Cohn case the court says the affidavit of the attorney does not show that the defendant required any bill of particulars. In Mungall v. Bursley, 51 App. Div. 380, the affidavit of the attorney was insufficient as it did not show that he possessed any knowledge of the facts upon which the application is based. In Sanders v. Soutter, 54 Hun, 310, the affidavit of the attorney ivas held to be sufficient as the complaint upon its face indicated the probable necessity of particulars to prevent surprise and that the attorney .and not the client was the best judge as to whether a proper answer could be interposed without the information soug'ht. It is fairly to be gathered from the authorities that while the affidavit must, in most cases, be made by the party, that this necessity arises ordinarily from his superior knowledge of the facts, and that the court is better satisfied as to the necessity of the application where the party swears. In this case the complaint is? indefinite and entirely uncertain, and if an application had been made before answer to make it more definite and certain, the inspection of the complaint would require such relief to be granted. Here the defendant, by a verified answer, denies the adultery. The attorney is a better judge of whether he can safely proceed to trial without the particulars desired than the client, and it is apparent from the complaint that no matter how innocent the defendant may be, if the case is to be pressed against him, he Avould proceed to trial under the greatest disadvantage without the particulars sought. This seems to be a case where an affidavit can allege no new facts, and where all that is necessary for the success of the motion is to have the attention of the court drawn to the pleadings, and it seems that the affidavit of the attorney that he cannot safely proceed to trial upon the complaint in its present form is all that is necessary to satisfy the court that the defendant is entitled to the relief asked. The motion is granted, and an order may be submitted to plaintiffs attorney and the court, requiring the time, place and the name or description of the parties, to be stated Avith reasonable certainty.

Motion granted.  