Opinion
January 25, 1955.
Present — Peck, P.J., Callahan, Breitel, Bastow and Botein, JJ.
Order appealed from unanimously modified, with $20 costs and disbursements to the appellant, and the matter referred to an official referee to be named in the order to be entered herein. The order shall further provide that plaintiff submit to an examination before the official referee as to the extent of his knowledge of the date, time and year of the occurrence of the alleged accident; second, that immediately following such plaintiff's examination, the defendant submit for examination before the official referee the witnesses and records heretofore directed in this action but limited at this time to the date, time and year of the alleged accident as established during plaintiff's examination; and third, promptly following the conclusion of such examination of the defendant and subject to the supervision of the official referee, plaintiff will serve a further bill of particulars complying with item 2 of defendant's demand for a bill of particulars in this action approved by the official referee as to the sufficiency of such further bill of particulars. This unusual procedure is warranted by the strange course of events that has occurred in this litigation with respect to the fixing of the time when the alleged accident occurred. The order granting in part the examination before trial by plaintiff of defendant is affirmed. Settle order. Appeal [from order denying motion for a stay] dismissed as academic.