Hyperlawhypertext legal database Atlas Powder Co. v. Mid Island Laundry Co. 175 Misc. 960

← Cases

Atlas Powder Co. v. Mid Island Laundry Co.

175 Misc. 960 Court Supreme Court, Appellate Term, First Department, Decision date 1941-02-21 English

Contents

Majority

p. 960
Atlas Powder Co. (Zapon Division), Respondent, v. Mid Island Laundry Co., Inc., Appellant.
Supreme Court, Appellate Term, First Department,
February 21, 1941.
Louis H. Katz, for the appellant.
Kamen & Ostertag, for the respondent.

A party may be precluded only as to those matters of which particulars have not been furnished. (Duncan Realty Co. v. Independent Trouser Co., Inc ., 150 Misc 902 ) It was error , to preclude defendant from offering evidence in support of its counterclaim. Defendant, having served a bill which it deemed a compliance with the order, was not in default. If the plaintiff claimed that the bill was defective or insufficient, it should have moved for an order precluding defendant from offering any evidence in support of the items which had been omitted unless a further bill was served.

Judgment reversed and a new trial ordered, with thirty dollars costs to appellant to abide the event.

All concur. Present — Hammer, Shientag and Miller, JJ.

Cases cited