McCourt v. Cowperthwait — 63 N.Y.S. 240

Majority

p. 240

McCOURT v. COWPERTHWAIT.

(City Court of New York, General Term.

March 7, 1900.)

Headnote

Bill op Particulars — Amended Complaint — Evidence—Motion to Exclude.

Where defendant accepted a further bill of particulars, and retained it for.five months without objection, the denial of her motion to preclude plaintiff from giving evidence at the trial in support of his complaint, as amended thereby, was proper.

Appeal from, special term.

Action by Peter J. McCourt against Cynthia B. Cowpérthwait for money expended to plaintiff’s use. From an order denying defendant’s motion to preclude plaintiff from giving evidence at the trial in support of the allegations of his complaint, she appeals.

Affirmed.

Argued before FITZSIMONS, C. J., and CONLAN and O’DWYER, JJ.

Henry Schoenherr, Jr., for appellant.

Walter Cox, for respondent.

The defendant having accepted the further bill of particulars served pursuant to the order of May 8, 1899, and having retained the same for five months without objection, we are of opinion that the defendant was guilty of loches in applying for an order to preclude the plaintiff from giving evidence at the trial. The retention of the bill of particulars by the defendant was an admission on her part that the plaintiff had complied with the order requiring the service of a further bill of particulars, and we believe the bill of particulars so served contained all the information that it was possible for the plaintiff to furnish.

The order appealed should be affirmed, with $10 costs and disbursements. All concur.