Opinion
October 23, 1950.
Action to recover damages for personal injuries and for wrongful death of plaintiff's intestate, alleged to have resulted from falling on snow and ice. Order on reargument modified on the law and the facts by striking therefrom the words "in all respects denied" and inserting in place thereof the following: "granted unless the defendant serves a bill of particulars of the alleged contributory negligence of plaintiff's intestate or of the negligence of third parties, and if such particulars are not within its knowledge, that defendant so state and declare its intention to rely upon the developments of the trial for proof of such affirmative defense, in which event the motion to preclude is denied." As thus modified, the order, insofar as appealed from, is affirmed with $10 costs and disbursements to appellant. ( Anton v. Boal, 270 App. Div. 1035, and cases cited therein.) The bill of particulars shall be served within ten days from the entry of the order hereon. Nolan, P.J., Carswell, Sneed, Wenzel and MacCrate, JJ., concur.