Opinion
July, 1904.
Bayard H. Ames and Henry A. Robinson [ F.A. Gaynor with them on the brief], for the appellant.
Henry W. Jessup, for the respondent.
The motion to strike this case from the calendar should be denied. After the service of the notice of appeal the Special Term was without power to set it aside or to make an order that it stand. Were such procedure to obtain, it would vest in the Special Term power to determine whether cases were or were not in this court. The uniform practice has been that the Appellate Division alone should determine what is before it. These reasons were quite sufficient to induce the learned Special Term to deny the defendant's motion to compel the plaintiff to accept the notice of appeal after the same had been returned to the attorney for the defendant.
Section 1300 of the Code of Civil Procedure distinctly allows appeals from specified parts of orders or judgments. While it is generally true that the party cannot take the benefit of an order and at the same time have an appeal therefrom, the rule invariably applies when the benefits or advantages of the order are conditional. "So, to make the acceptance of a benefit under an order operate as a waiver of the right of appeal, there must be an inconsistency in retaining such benefit and at the same time appealing from the order." ( Matter of Water Commissioners of Amsterdam, 36 Hun, 534, citing Knapp v. Brown, 45 N.Y. 207, and Benkard v. Babcock, 27 How. Pr. 391. See, also, Van Loan v. Squires, 51 Hun, 360.)
The order under review upon this appeal must be modified. The action is for personal injuries alleged to have been received by the plaintiff by reason of the negligence of the defendant, and the defendant moved at Special Term for a bill of particulars; the motion was granted in part, and the defendant appeals from so much of the order as denies a bill of particulars in respect to the balance of the demand made in the notice of motion.
Particulars, so far as practicable, in relation to expenses incurred by plaintiff for medical aid, doctors' bills, and medical supplies defendant should have ( Steinau v. Metropolitan Street R. Co., 63 App. Div. 126; Quinn v. Fitzgerald, 87 id. 539); and the plaintiff should furnish a bill of particulars from which the defendant may be advised as to the amount of time the plaintiff has lost by reason of his injuries, and the wages he has been prevented from earning on account thereof. ( Quinn v. Fitzgerald, supra.) If the plaintiff should be unable to furnish any of this information, or to furnish it completely, he should be directed to state such lack of knowledge or inability as a substitute for the information requested by the demand. ( Schwartz v. Green, 38 N.Y. St. Repr. 569.)
The order so far as appealed from should be reversed, with ten dollars costs and disbursements. The motion for the particulars referred to should be granted.
All concurred.
Motion to strike case from the calendar denied. Order so far as appealed from reversed, with ten dollars costs and disbursements. Motion for particulars referred to granted.