Butler v. Burlingame

240 A.D. 714

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 15, 1933
• Docket: Appeals Nos. 1 and 2
• Status: Published

Opinion

On appeal No. 1, order precluding plaintiffs from giving evidence reversed on the law and the facts, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. On appeal No. 2, order modified so as to grant plaintiffs’ motion to vacate the order of preclusion, and so as to open plaintiffs’ default and grant them leave to serve a bill of particulars. As so modified the order is affirmed, with.ten dollars costs and disbursements to appellants; the bill of particulars to be served within five days from the entry of the order herein. In our opinion, the course pursued by the respondent in insisting upon the trial of the action before the bill of particulars was due, and in trying the case and permitting the reception of plaintiffs’ evidence therein without objection based upon their failure to serve the bill, waived his right to take the plaintiffs’ default thereon and obtain an order of preclusion. Lazansky, P. J., Young, Hagarty, Carswell and Davis, JJ., concur.