Boskowitz v. Sulzbacher

128 A.D. 537, 112 N.Y.S. 890, 1908 N.Y. App. Div. LEXIS 526

Opinion

Per Curiam :

The defendant appeals from an order resettling a former order and from each and ■ every part of said order. The original order simply denied a motion by plaintiff to compel defendant to accept a bill of particulars. The resettled order not only denied that motion, but also permitted plaintiff to serve a further and amended bill of particulars within a specified time, and directed the payment by plaintiff to defendant of the sum of ten dollars costs in addition to the costs allowed by the original order. While this court is not without power in many cases to review a Special Term order denying or granting a motion for the resettlement of an order; a very clear case must be made for the exercise of that power. It frequently happens that, through some error or inadvertence, the first order entered does not conform in all respects with the disposition intended to have been made of the motion. Such a case is often presented when the order as originally entered does not impose reasonable conditions, or does not afford to the defeated party an opportunity to retrieve his position. This court has already had occasion to point out that where a party has attempted, in good faith, but unsuccessfully, to serve a sufficient bill of particulars, he should be given other reasonable opportunity to comply with the order of the court. This is, in effect, what the resettled order does .in the present case, and we cannot say, on the papers before us, that it was an improper exercise of discretion to thus resettle the drastic order originally entered. The notice of appeal is sufficiently broad to bring up for review the whole resettled order, but the papers are not sufficient to enable us to pass upon it, for we have no means of determining whether of not the bill of particulars attempted to be served.indicated such good faith as to warrant the court in granting to plaintiff a furtlier opportunity. For the reasons, therefore, that it does not affirmatively appear that the Special Term exceeded the limits of its discretion in resettling the order, and that we have not sufficient before us to enable us to pass upon the appeal from the order as resettled, the appeal must be dismissed, but without costs.

Present — Patterson, P. J., Ingraham, Laughlin, Clarke and Scott, JJ.

Appeal dismissed, without costs.