Opinion
October 25, 1907.
Edwin C. Vogel, for the appellants.
Alexander S. Bacon, for the respondent.
Upon the papers presented I think the plaintiff was entitled to the particulars required to be furnished.
The order should be modified, however, by striking out the provision imposing a penalty for a failure to file the bill of particulars required by the order. If a bill of particulars as required should not be furnished, the plaintiff may then apply to the court for an order preventing the defendants from giving any evidence as to the items about which the bill of particulars was ordered; but until there has been a default this provision is improper.
It follows that the order appealed from must be modified by striking out the last clause of the order, and as modified affirmed, without costs.
PATTERSON, P.J., LAUGHLIN, CLARKE and HOUGHTON, JJ., concurred.
Order modified as directed in opinion, and as modified affirmed, without costs. Settle order on notice.