Opinion
February 4, 1910.
Maxwell C. Katz of counsel [ Katz Sommerich, attorneys], for the appellant.
Franklin Bien, for the respondent.
On October 22, 1909, the Special Term, upon motion of the defendant, made an order directing plaintiff to make and serve a bill of particulars. Said order provided: "Ordered, that until such service all proceedings on the part of the plaintiff or his attorney to force this action to trial be and the same are hereby stayed."
On December 31, 1909, this order was resettled so as to provide as follows: "Ordered, that until such service all proceedings on the part of the plaintiff and his attorneys be and the same are hereby stayed." From said order plaintiff appeals.
This order must be reversed for these reasons: First, it was improper to resettle an order over two months after it had been entered by providing for a stay of all proceedings, and thereby attempt to invalidate or make ineffective such proceedings as had been taken ad interim. Second, under no circumstances should an order providing for the service of a bill of particulars provide for the stay of all proceedings in an action. There may be many proceedings, advisable or necessary, to be taken in an action having no possible relation to the service of a bill of particulars, which should not be interfered with. Such provision was unwarranted. Third, the remedy for non-compliance with an order for the service of a bill of particulars is to be determined when the failure to comply has been established; and a provision in an order providing for the service of a bill of particulars imposing a penalty for failure to obey said order is improper. ( Foster v. Curtis, 121 App. Div. 689.)
The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion to resettle the order of October 22, 1909, denied, with ten dollars costs.
INGRAHAM, P.J., McLAUGHLIN, SCOTT and DOWLING, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.