Opinion
November 1, 1943.
Defendant appeals from an order (1) granting plaintiff's motion to preclude defendant from offering any proof to sustain the allegations of its several separate defenses and counterclaims because of failure to serve a bill of particulars; and (2) denying defendant's cross motion to be relieved of its default and to vacate or modify plaintiff's demand for a bill of particulars. Order reversed on the law and the facts, without costs, and plaintiff's motion to preclude denied, without costs. Defendant's cross motion is granted, without costs, to the extent of relieving defendant of its default, and the matter is remitted to Special Term to pass upon the nature of the bill of particulars to be served. In the opinion of this court the order precluding defendant from offering any proof and refusing to vacate its default was an improvident exercise of discretion. Close, P.J., Carswell, Johnston, Adel and Taylor, JJ., concur.