Opinion
March 17, 1952.
In an action to impress a trust on a partnership interest, order granting plaintiff's motion to vacate defendant's notice of examination of a party reversed on the law and the facts, without costs, and the motion denied, without costs; examination to proceed on five days' notice. The items contained in defendant's notice of examination concern matters which are material to the issues involved in the action. Order modifying defendant's demand for a bill of particulars modified on the law and the facts by striking from the first ordering paragraph all the matter commencing with the figure "1" and ending with the figure "10", and substituting in place thereof matter reading as follows: "1, 3, 4a through 4g, 5c, 7e through 7m, 8c (last seventeen words), 8e, 8f, 8h, 9a, 9b, 9g (word `exact' and last four lines), 9h through 9i, 10a, 10c, 10d, 10f through 10i". As thus modified, the order, insofar as appeal is taken, is affirmed, without costs; verified bill to be served within twenty days after entry of an order hereon. It may not be said that the deletion of many of the items in the demand which were, in discretion, disallowed, was an improvident use of discretion. In our opinion, the items allowed, as indicated, are proper subjects of amplification by a bill of particulars under the pleading. Carswell, Acting P.J., Johnston, Adel, Wenzel and MacCrate, JJ., concur. [See post, p. 1009.]