Atlas Powder Co. v. Mid Island Laundry Co.

175 Misc. 960, 25 N.Y.S.2d 872, 1941 N.Y. Misc. LEXIS 1508

Opinion

Per Curiam.

A party may be precluded only as to those matters of which particulars have not been furnished. (Duncan Realty Co. v. Independent Trouser Co., Inc., 150 Misc 902) It was error , to preclude defendant from offering evidence in support of its counterclaim. Defendant, having served a bill which it deemed a compliance with the order, was not in default. If the plaintiff claimed that the bill was defective or insufficient, it should have moved for an order precluding defendant from offering any evidence in support of the items which had been omitted unless a further bill was served.

Judgment reversed and a new trial ordered, with thirty dollars costs to appellant to abide the event.

All concur. Present — Hammer, Shientag and Miller, JJ.