Galif v. J. Erlichman, Inc. — 128 N.Y.S. 628

Majority

p. 628

GALIF v. J. ERLICHMAN, Inc.

(Supreme Court, Appellate Term.

March 21, 1911.)

Headnote

Pleading (§ 323^[1] )—Bill of Particulars—Order.

A provision in an order for a bill of particulars requiring the costs of the motion to be paid at or before the service of the bill does not make the service conditional upon payment of costs, but merely fixes the time of payment.

[Ed. Note.—For other cases, see Pleading, Cent. Dig. § 979; Dec. Dig. § 323.^[1] ]

Appeal from City Court of New York, Special Term.

Action by Gertrude Galif against J. Erlichman, Incorporated. From an order granting a motion to preclude plaintiff from offering evidence because of her failure to serve a bill of particulars pursuant to order, plaintiff appeals. Reversed.

’ Argued before SEABURY, LEHMAN, and BIJUR, JJ.

Abraham I. Smolens, for appellant.

Frank V. Johnson, for respondent.

Upon the plaintiff’s refusal to serve a bill of particulars upon demand, the defendant obtained and served an order on the plaintiff, November 22, 1910, directing her to serve a bill of particulars within ten days. This order continued :

“And it is further ordered, that the plaintiff pay to the defendant’s attorney within ten (10) days after the service upon plaintiff’s attorney of a copy of this’order with notice of entry thereof, and at least at or before the service of the bill of particulars, ten ($10.00) dollars costs of this motion.” '

Plaintiff did not pay the costs, but on December 2d served a bill of particulars, which was promptly returned. Defendant claims that the. order made the service of the bill of particulars conditional upon

p. 629

plaintiff’s first paying costs. In this construction of the order I cannot concur. It would be aif.extraordinary form of order in any event to direct a plaintiff to serve 'á\ bill of particulars, and at the same tiihe to treat it as a privilege accorded to him by requiring him to pay $10 before carrying out the order of the court. I prefer to adopt the simpler and more reasonable interpretation that the provisions as to the payment of costs merely fixed the time of payment.

In this view the bill of particulars was improperly returned by defendant, because it had been duly served, from which it follows that the order to preclude plaintiff from giving testimony thereunder, from which this appeal is taken, was improperly granted, and should be reversed, with costs.

Order reversed, with $10 costs and disbursements. All concur.