Opinion
December 27, 1961
In an action between two attorneys to recover for legal services performed by plaintiff on behalf of defendant, wherein defendant interposed a counterclaim for the reasonable value of the use and occupation by plaintiff of defendant's offices, defendant appeals from the following two orders of the Supreme Court, Kings County, dated May 22, 1961: (1) an order denying his motion to vacate plaintiff's cross notice to examine him (defendant) before trial and directing him to appear for examination; and (2) an order denying his motion to preclude plaintiff for his failure to serve a bill of particulars in accordance with defendant's demand, such denial being upon the condition that plaintiff shall serve such bill "within twenty days after completion of his examination of defendant before trial." The first order, which denied defendant's motion to vacate the plaintiff's cross notice of examination, is modified by striking out the second decretal paragraph, and by substituting therefor a provision that said examination shall proceed and that the defendant shall appear at the place now specified therein and at a time to be fixed in an appropriate notice to be given by plaintiff not less than 10 days after plaintiff's service of a bill of particulars as hereinafter provided. As so modified, the order is affirmed, without costs. The second order, which denied defendant's motion to preclude, is modified by striking out the decretal paragraph, and by substituting therefor provisions disposing of the motion as follows: that the motion to preclude is denied upon the condition that plaintiff, within 10 days after entry of the order hereon, shall furnish a bill of particulars as to items 1, 2, 6, 7, 9 and 10 of the demand; and that plaintiff, within 10 days after completion of the examination before trial of defendant, shall furnish a supplemental bill of particulars as to items 3, 4, 5, 8, 11 and 12 of the demand. This disposition is without prejudice to a further motion by the defendant for preclusion in the event that the plaintiff should fail to comply with the provisions of the order as amended pursuant to this decision. As so modified, the order is affirmed, without costs. The better practice, in a case such as this, would be for the plaintiff to comply with the demand for the bill of particulars to the best of his knowledge; and when he lacks sufficient information to answer all the items in the demand, he should set forth such lack of knowledge under oath, and then, after an examination of the defendant, plaintiff should serve an amended or supplemental bill as to those items which requested information that is in defendant's records and of which plaintiff had no knowledge in the absence of such examination. Nolan, P.J., Beldock, Christ, Pette and Brennan, JJ., concur.