Opinion
December 14, 1961
Order entered on October 2, 1960, denying defendant-appellant's motion to preclude, unanimously affirmed, without costs, and the stay pending appeal vacated. While the demand for a bill of particulars was properly made (Rules Civ. Prac., rule 115), there are certain factors present to which we advert in explanation of the above disposition. On the submission of the appeal there was handed up to the court, without objection, an affidavit of respondent, to which was appended a bill of particulars. The affidavit stated the parties agreed that if the said bill complied with the demand the stay would be vacated, the appeal withdrawn, and a stipulation was signed to that effect. Examination of the demand and the bill persuades us there is a sufficient compliance. Accordingly, since the existence of the stipulation is not denied, and in accordance with what appears from the affidavit to be the agreement of the parties, the order is affirmed, and the stay vacated.
Concur — Botein, P.J., Breitel, Valente, Stevens and Eager, JJ.