Opinion
May, 1907.
The pleadings are not a part of the record; but it appears that no reply has been served to the counterclaim set up in the defendants' answer, and there is no allegation in the affidavits upon which the motion was granted that this bill of particulars is required to enable the plaintiff to reply. The plaintiff certainly knows whether she has received any of the defendants' property, and while it may be that a bill of particulars would be proper after the case is at issue to prevent surprises at the trial, or to limit the defendants' proof, as there is nothing to show that a bill of particulars was necessary to enable the plaintiff to reply, the application for a bill of particulars was premature. The order appealed from must be reversed, with ten dollars costs and disbursements, and the motion for a bill of particulars denied, with ten dollars costs, without prejudice to an application for a bill of particulars after issue is joined. Patterson, P.J., Laughlin, Clarke and Scott, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, without prejudice to application for bill of particulars after issue joined.