Opinion
February 21, 1941.
Appeal from the Municipal Court of the City of New York, Borough of Manhattan, Ninth District.
Louis H. Katz, for the appellant.
Kamen Ostertag, for the respondent.
A party may be precluded only as to those matters of which particulars have not been furnished. ( Duncan Realty Co. v. Independent Trouser Co., Inc, 150 Misc. 902) It was error to preclude defendant from offering evidence in support of its counterclaim. Defendant, having served a bill which it deemed a compliance with the order, was not in default. If the plaintiff claimed that the bill was defective or insufficient, it should have moved for an order precluding defendant from offering any evidence in support of the items which had been omitted unless a further bill was served.
Judgment reversed and a new trial ordered, with thirty dollars costs to appellant to abide the event.
All concur. Present — HAMMER, SHIENTAG and MILLER, JJ.