Cohen v. Katz

136 Misc. 526, 241 N.Y.S. 64, 1930 N.Y. Misc. LEXIS 1161

• Court: City of New York Municipal Court
• Decided: April 1, 1930
• Status: Published

Opinion

Goldstein, J.

On the eve of the trial of this action plaintiff moves to preclude the defendant from giving any evidence in proof of his counterclaim because of his failure to comply with an order of this court dated June 29, 1929, directing the service of a further bill of particulars. Pursuant to the said order the defendant did serve a further bill of particulars on the 10th day of July, 1929. Plaintiff now claims that said bill failed to comply with the order and seeks an order of preclusion. Plaintiff accepted the bill and waited eight months to bring this motion. Where there has been no default in the service of a bill and where the party thinks the bill of particulars furnished is insufficient the practice to be followed has been pointed out by the court in the case of Faller v. Ranger (99 App. Div. 374), wherein it was said: “ if the bill as served is deemed defective or insufficient the one on whom it is served can move for a further bill of particulars; and this is seemingly the more regular and orderly practice. Should he, however, elect to return it, then the party serving it should have the right to compel him to accept it, and on such a motion the question of whether or not he complies with the order should be decided.” The return of the insufficient bill of particulars is a prerequisite to a motion to preclude. (Reader v. Haggin, 114 App. Div. 112; Helm v. Helm, 169 N. Y. Supp. 1097.) Plaintiff has been guilty of loches in waiting until the day of trial to make this motion and has waived bis right to any further bill of particulars. This motion is, therefore, denied.