Opinion
March 12, 1952.
Appeal from Supreme Court, Sullivan County.
We consider that the subject matter referred to in item 8 of the order, viz.: the disablement of plaintiffs' plant, has not been shown a proper subject for pretrial examination. It does not appear that as to such matter defendant has any information plaintiffs are entitled to have it impart to them. The denial of defendant's cross motion for a bill of particulars should have been without prejudice to its renewal after the examination before trial. Order modified on the law and facts by the omission therefrom of the subject matter therein referred to as item "8" and by the denial of defendant's cross motion, without prejudice, and as modified, affirmed, without costs. The fixation of the time and place of defendant's examination before trial is remitted to Special Term. Foster, P.J., Brewster and Coon, JJ., concur; Heffernan and Bergan, JJ., dissent, and vote to affirm.