Richards v. Miller

Smith, P. J.: The order appealed from directs a verified hill of particulars to be served by the plaintiff' as to many matters alleged in the complaint. The granting of this order was within the discretion of the Special Term judge, and we are unable to say that that discretion has been abused. The plaintiff sues for an accounting with defendant, with whom plaintiff was a partner for over twenty years in blacksmithing. It is proper that the defendant should have the particulars of the' matters alleged by the complaint as constituting the account. The final provision of the order is to the effect that if the plaintiff fails and refuses to comply with the terms of the order he is precluded from giving any evidence on the trial in support of his claims of which he has not given a bill of particulars. This portion of the order was unauthorized. (See Hein v. Honduras Syndicate, 138 App. Div. 788; Metropolitan Life Insurance Company v. Heinze, 163 id. 943.) If after the plaintiff has furnished such bill of particulars as he is able to furnish the defendant should be of opinion that he had not exercised good faith in giving the particulars of his claim, the defendant may then apply to the court for an order excluding the evidence as, to those parts of the claim of which particulars have not been given. The court will not ordinarily, however, preclude a party from giving evidence if satisfied that the party has in good faith furnished such particulars as he could furnish in pursuance of the order. •The order is, therefore, modified by striking therefrom the last provision, and as modified affirmed, without costs. All concurred. Order modified as per opinion and as modified affirmed, without.costs.