Opinion
May, 1921.
Order modified as follows: From the requirement in paragraph II, the words "and if anyone else was present, a statement of who, other than the plaintiff and defendant, the plaintiff claims was present," are eliminated. From the requirement in paragraph V, the words "and a statement of whether anybody other than the plaintiff and defendant was present when the oral direction was given, and if so, who is claimed to have been so present," are eliminated. From the requirement in paragraph VIII, the words "and wherein plaintiff claims such demands constituted a wrongful, or other, interference with, or prevention of, the plaintiff, from performing and completing any of the work (and in detail, which work) contemplated by and included in the aforesaid written agreement, as theretofore claimed to have been modified, altered and amended, as pleaded in the `Eighth' paragraph of the complaint herein," are eliminated. From the requirement in paragraph XI, the words "together with the net actual cost of each and every item of such work, labor and materials, aggregating $22,032.79, as pleaded in the `Tenth' paragraph of the complaint herein," are eliminated. From the requirement in paragraph XII, the words "whether in cash, by check or otherwise, and if otherwise than by cash or check, the precise manner or method of such claimed payment; and the consideration for, or purpose of each payment; and the name and last known address of the person, persons, firm or firms, corporation or corporations to whom or which any and every such payment is claimed to have been made," are eliminated. From the requirement in paragraph XIII, the words "and shall give in lieu thereof, what he claims to have been, or what he claims would have been (as the case may be) the reasonable value of the work, labor, services or materials, the actual net cost of which is called for," are eliminated. The provisions of the order staying further proceedings on the part of plaintiff and giving defendant ten days further time to serve his amended answer after the service of the bill of particulars are eliminated. The order is further modified by providing that if the plaintiff shall be unable to give any of the particulars called for in this order, he shall so state under oath, which shall be deemed as to such particulars a full compliance with the order. As modified, the order is affirmed, without costs to either party as against the other. Blackmar, P.J., Mills, Rich, Putnam and Kelly, JJ., concur. Settle order on notice before the presiding justice.