
    Mary A. Knox, Plaintiff, v. George A. W. Knox, Defendant.
    (Supreme Court, Kings Special Term,
    March, 1913.)
    Bill of particulars — motion for, in action for divorce —■ denial of motion — divorce.
    The defendant’s motion for a bill of particulars in an action for divorce as to the allegation of the complaint that between certain dates he committed adultery with one whose name was unknown to plaintiff will be denied where the affidavit is made not by defendant but by his attorney.
    Motion for a bill of particulars in an action for absolute divorce.
    Charles A. MacHenry, for motion.
    Burlingame & Sheffield, in opposition.
   Benedict, J.

Motion for bill of particulars in action for absolute divorce. The defendant in an action for divorce is not necessarily, and as a matter of course, entitled to a bill of particulars of a general averment in the complaint that between certain dates the defendant committed adultery with a woman whose name is unknown to the plaintiff; but ordinarily, where the application for such a bill of particulars is sustained by the affidavit of the party, showing his probable inability to meet the allegations as set forth in the complaint, without a more particular description or statement of the facts attending the charge, a bill of particulars may be ordered. Carrillo v. Carrillo, 17 Civ. Pro. 220, per Daniels, J., with whom concurred Van Brunt, P. J., and Bartlett, J. In the present case the defendant does not make the affidavit himself; his attorney alone makes it. This is insufficient. notwithstanding the very general nature of the allegation, he may be fully aware of the individual intended to be referred to in making it; and, if he has that knowledge or information, then he cannot be misled or prejudiced in his defense by the omission to state the name or give the description of the person in the complaint, or to designate the place where the misconduct may have occurred. * * * This affidavit of the attorney is wholly insufficient to entitle the defendant to a bill of particulars ; for it fails to establish the fact that the defendant himself is in any manner ignorant of fhe individual, or of the time or place where the adultery is alleged to have taken place.” Per Daniels, J., in case cited.

Motion denied, with ten dollars costs.  