#### Jennie L. Webster et al., Plaintiffs, *v.*The Fitchburg Railroad Co., Defendant.

(Supreme Court, Albany Special Term,

September, 1900.)

1. Bill of particulars — Discretionary.

Except in an action on an account, it is discretionary with the court to order a bill of particulars of a pleading.

*2.*Same — Affidavit must be made by party — Insufficiency.

The affidavit for the motion must be made by the party or the attorney’s affidavit must show why it was not so made.

Where the answer of a railroad corporation, to an action brought against it for setting trees on fire by sparks from an engine, merely denies any knowledge or information sufficient to form a belief as to the principal allegations of the complaint, and the affidavit of its attorney does not deny negligence nor allege that the company has investigated the matter, a motion upon the part of the corporation that the plaintiff serve a bill, showing what particular train or engine did the damage, must be denied for the insufficiency of the papers.

*443Motion for a bill of particulars in an action to recover damages. for alleged negligence of the defendant, among other things in failing to employ suitable means to prevent the escape of sparks and fire from its engines, and thus setting fire to certain trees of the plaintiffs, and destroying the same.

T. F. Hamilton, for motion.

Charles I. Webster, opposed

Chase, J.

The answer herein is a denial of any knowledge or information sufficient to form a belief as to the principal allegations of the complaint. The motion is based on the pleadings and on the affidavit of the attorney for the defendant.

It is only in an action on an account that a bill of particulars may be directed on inspection of the pleadings. In every other case a motion for a bill of particulars is addressed to the discretion of the court, and must be founded upon affidavits showing the necessity for the bill of particulars. Badger v. Gilroy, 21 Misc. Rep. 466.

The affidavit herein does not deny the defendant’s negligence, and does not show that the officers and agents of the defendant are ignorant of the matters concerning which the bill of particulars is asked nor that any inquiry has been made by the defendant with reference thereto. It states that the complaint does not allege what particular engine or what particular train of cars passed the land of the plaintiffs at the time of the alleged fire and concludes that it is impossible for the defendant to properly prepare for trial without knowing what particular engine it will be claimed on the trial was defective in its means for preventing the escape of sparks. This is wholly insufficient. Wales Mfg. Co. v. Lazzaro, 19 Misc. Rep. 477; Bowman Cycle Co. v. Dyer, 23 id. 620; Slingerland v. International Contracting Co., 28 id. 319; Constable v. Hardenbergh, 76 Hun, 434.

No reason is given why the affidavit is made by the attorney for the defendant. It has been repeatedly held that an affidavit for a bill of particulars, made by an attorney, without giving any reason why it is not made by the party, is insufficient; Mayer v. Mayer, 29 App. Div. 393; Stevens v. Smith, 38 id. 119; Dueber Watch Case Mfg. Co. v. Keystone Watch Case Co., *50*N. Y. St. Repr. *444417; Gridley v. Gridley, 7 Civ. Pro. 215; Van Olinda v. Hall, 82 Hun, 357; Cohn v. Baldwin, 74 id. 346; Groff v. Hagan, 13 Misc. Rep. 322; Mori v. Pearsall, 14 id. 251; Gallerstein v. Manhattan R. Co., 27 id. 506.

The motion for a bill of particulars is domed, with costs.

Motion denied, with costs.