Majority
p. 388(121 App. Div. 689.) FOSTER v. CURTIS et al. (Supreme Court, Appellate Division, First Department. October 25, 1907.) Argued before PATTERSON, P. J., and INGRAHAM, LAUGH-LIN, CLARKE, and HOUGHTON, JJ.
Headnote
Pleading—Bell of Particulars.It is improper to include, in an order requiring defendant to furnish a bill of particulars, a provision imposing a penalty for a failure to file the bill; but, if the bill be not furnished, plaintiff may then apply for an order preventing defendant from giving any evidence as to the items about which the bill of particulars was ordered.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 39, Pleading, § 995.]
Appeal from Special Term.
Action by Charles W. Foster against Harry F. Curtis and another. From an order requiring defendant to serve a bill of particulars, defendant appeals. Modified and affirmed.
See 105 N. Y. Supp. 362 .
Edwin C. Vogel, for appellants.
Alexander S. Bacon, for respondent.
Upon the papers presented I think the plaintiff was entitled to the particulars required to be furnished. The order should be modified, however, by striking out the provision imposing a penalty for a failure to file the bill of particulars required by the order. If a bill of particulars as required should not be furnished* the plaintiff may then apply to the court for an order preventing the defendants from giving any evidence as to the items about which the bill of particulars was ordered; but, until there has been a default* this provision is improper.
It follows that the order appealed from must be modified, by striking out the last clause of the order, and, as modified, affirmed, without costs. All concur.