McKenna v. Horwitz & Schanback — 163 A.D. 541

Majority

p. 541

Joseph McKenna, Respondent, v. Horwitz & Schanback, Appellant.

Second Department,

July 31, 1914.

Headnote

Pleading—bill of particulars — practice—motion to preclude giving of evidence — relief of party from default — appeal.

Section 531 of the Code of Civil Procedure, providing that in case of a failure to serve a bill of particulars the party shall be precluded from giving evidence of the allegations of his pleading, of which particulars have been ordered and not delivered, is mandatory and, if a bill ordered cis not furnished, the precluding order follows as matter of course.

The court has no discretion though it may in a proper ease relieve a party from his default.

Where on appeal from an order denying a motion to preclude a party from giving evidence because of his failure to serve a bill of particulars, no reason is disclosed for the failure, a statement in the brief of counsel that upon the hearing of the motion he explained the reasons for the delay will be disregarded where it does not appear in the record.

Appeal by the defendant, Horwitz & Schanback, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 29th day of April, 1914.

Benjamin C. Ribman, for the appellant.

Thomas Downs [Edward J. McCrossin with him on the brief], for the respondent.

This appeal is from an order of the Special Term denying a motion for an order precluding the plaintiff from giving evi

p. 542

dence on the trial of the action because of his failure to serve a bill of particulars pursuant to an order therefor, made on March 30, 1914. The motion papers were served on April twenty-first. Two days thereafter, and on April twenty-third, a bill of particulars was served, and immediately returned upon the ground that the plaintiff was in default. Section 531 of the Code of Civil Procedure, providing that in case of a failure to serve a bill of particulars the party shall be precluded from giving evidence of the allegations of his pleading of which particulars have been ordered and not delivered, is mandatory (Smith v. Bradstreet Co., 134 App. Div. 567 ), and if a bill ordered is not furnished the precluding order follows as matter of course. The court has no discretion, though it may in a proper case and upon a proper motion relieve a party from his default, bio reason is disclosed for the failure to comply with the order directing the service of a bill of particulars, though it is said in the brief of counsel for the respondent that upon the hearing of the motion at Special Term he explained to the court the reasons for the delay, and moved informally that his client’s default be opened on condition that the bill of particulars be delivered forthwith to the. attorney for the defendant. This does not appear in the record and must, therefore, be disregarded, and the order must be reversed, with ten dollars costs and disbursements, without prejudice to move to open the default upon such terms as the court may deem proper.

Jenks, P. J., Burr, Oarr and Putnam, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with costs, without prejudice to plaintiff to move to open the default upon such terms as the court may deem proper.