Opinion
June 19, 1950.
Plaintiff brought an action for an accounting based upon alleged fraudulent acts under an agreement between plaintiff and defendant Abko Products. Respondents' answer denies the alleged fraud. Respondents moved for a bill of particulars in respect of eleven items, which motion was granted. Order modified by striking therefrom items 5 to 10, both inclusive, and, as thus modified, the order, insofar as appealed from, is affirmed, with $10 costs and disbursements to the appellant, the bill of particulars to be served within ten days from the entry of the order hereon. Plaintiff may not be required to furnish particulars in respect of matters upon which respondents have the duty to account in the first instance, in the event plaintiff becomes entitled to an interlocutory judgment directing an accounting. ( United States Tit. Guar. Co. v. Brown, 160 App. Div. 591; Heidenreich v. Hirsh, 85 App. Div. 319; Fickinger v. Ives, 109 App. Div. 684; Reed v. Marks, 56 App. Div. 272. ) Carswell, Acting P.J., Johnston, Adel, Wenzel and MacCrate, JJ., concur.