Klump v. Gardner — 9 N.Y. St. Rep. 355

Majority

p. 355

John F. Klump et al., Resp’ts, v. Guy H. Gardner et al., App’lts.

(Supreme Court, General Term, First Department,

Filed May 13, 1887 )

Headnote

1. Bill of particulars—Successive motions fob.—not allowable except BY LEAVE OF COUBT.

A motion for a bill of particulars as to any part of a complaint having been made and denied a further motion for that purpose cannot be made without leave of the court.

3. Same—What will not affect the rule as to.

The fact that several causes of action are joined in the complaint does not entitle the party to make separate motions in reference to each. Nor is this rule affected by the first motion, asking also that the complaint be made more definite and certain.

Appeal from order denying motion for a bill of particulars.

Henry P. StarbucJc, for app’lt; J. H. Kitchen, for resp’t.

It appears from the papers on appeal that the defendant in this action prior to answering, made a motion for all the relief which he seeks to obtain by the present motion, with the exception of that branch of his motion where he now asks for a bill of particulars in refer ence to the second cause of action mentioned in the com plaint herein.

The adjudication upon the prior motion seems to be a bar to the maintenance of the motion from the order denying which this appeal is taken. It is true that in the first motion a bill of particulars was not asked for, as to the second cause of action mentioned in the complaint; but having made a motion for a bill of particulars as to any part of the complaint, and such motion having been demed, the party cannot make another motion in reference to a bill of particulars as to the same complaint without leave of the court. The mere fact that different causes of action are set out in the complaint, does not entitle the party to make separate and distinct motions in reference to each portion of the complaint relating to the different causes of' action. It is true that in the first motion made, relief in respect to the making of the complaint more definite and certain was asked, but in default of that relief being granted, the defendant claimed the right to a bill of particulars.

This motion having been denied without any leave to renew the right to amend and to a bill of particulars, appear both to have been passed upon adversely to the defendant.

The order appealed from must therefore be affirmed, with $10 costs and disbursements.