
    Phineas Gallerstein, an Infant, by William Gallerstein, His Guardian ad litem, appellant, v. The Manhattan Railway Company, Respondent. (Action No. 2.)
    (Supreme Court, Appellate Term,
    May, 1899.)
    Bill of particulars — Affidavit must foe made foy party.
    ;.An attorney,¿employed -iti .the' office o£,,the,.defendant,srattorney. cannot make an affidavit which will afford a proper basis for an order . requiring the plaintiff to serve a bill of particulars of the complaint, as such an affidavit should be made by. the party.
    Gallerstein v. Manhattan Railway Co., 26 Misc. Rep. 852, reversed.
    Appeal from an order of the General Term of the City Court, affirming an order requiring plaintiff to serve a verified bill of particulars.
    Emanuel Hertz, for appellant.
    Charles A. Gardiner (Julien T. Davies and Joseph H. Adams, of counsel), for respondent.
   Freedman, P. J.

The motion -resulting in the order -appealed, from was based upon an affidavit of an attorney employed in the. office of the- attorney for the defendant, and upon the pleadings.. The only proof as to the alleged necessity of the order consisted in the affidavit referred to. That such an affidavit, even if made by the attorney of record, is wholly insufficient has been expressly determined in Dueber Watch Case Manf’g Co. v. Keystone Watch Case Co., 21 N. Y. Supp. 342. To the same effect are Mayer v. Mayer, 51 N. Y. Supp. 1079; Van Olinda v. Hall, 82 Hun, 357; Gridley v. Gridley, 7 Civ. Pro. 215.

The order should be reversed.

Leventbitt, J., concurs; MacLeae, J., taking no part.

Order reversed, "with costs to appellant.  