McKenna v. Horwitz & Schanback

Rich, J.: This appeal is from an order of the Special Term denying a motion for an order precluding the plaintiff from giving evi [542] dence on the trial of the action because of his failure to serve a bill of particulars pursuant to an order therefor, made on March 30, 1914. The motion papers were served on April twenty-first. Two days thereafter, and on April twenty-third, a bill of particulars was served, and immediately returned upon the ground that the plaintiff was in default. Section 531 of the Code of Civil Procedure, providing that in case of a failure to serve a bill of particulars the party shall be precluded from giving evidence of the allegations of his pleading of which particulars have been ordered and not delivered, is mandatory (Smith v. Bradstreet Co., 134 App. Div. 567), and if a bill ordered is not furnished the precluding order follows as matter of course. The court has no discretion, though it may in a proper case and upon a proper motion relieve a party from his default, bio reason is disclosed for the failure to comply with the order directing the service of a bill of particulars, though it is said in the brief of counsel for the respondent that upon the hearing of the motion at Special Term he explained to the court the reasons for the delay, and moved informally that his client’s default be opened on condition that the bill of particulars be delivered forthwith to the. attorney for the defendant. This does not appear in the record and must, therefore, be disregarded, and the order must be reversed, with ten dollars costs and disbursements, without prejudice to move to open the default upon such terms as the court may deem proper. Jenks, P. J., Burr, Oarr and Putnam, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion granted, with costs, without prejudice to plaintiff to move to open the default upon such terms as the court may deem proper.