Opinion
January 22, 1951.
Appeal from order dated October 26, 1950, dismissed, without costs. Order on reargument modified on the law and the facts by striking out everything following the word "reargument" and inserting in place thereof a provision granting appellant's motion to the extent of opening the default in the service of the bill of particulars upon condition that plaintiff pay to respondent Tully Di Napoli $50 costs and serve the required bill of particulars. As thus modified, the order is affirmed, without costs, the payment of $50 costs and the service of the bill of particulars to be made within ten days from the entry of the order hereon. When the Supreme Court ordered the transfer of the action from the City Court and thereafter retained it when it appeared on the Classification Calendar and granted an examination before trial, it was inferentially held that there was a showing of merit by plaintiff. There is no dispute that a bill of particulars was served while the action was pending in the City Court and that a doctor supplied an affidavit as to plaintiff's injuries when the transfer to the Supreme Court was sought. Neither is there dispute that counsel for plaintiff was away from his office on the date when the bill of particulars should have been served. Nolan, P.J., Carswell, Johnston, Wenzel and MacCrate, JJ., concur.