Curran v. Porkar

283 A.D. 849, 128 N.Y.S.2d 794, 1954 N.Y. App. Div. LEXIS 5496

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 10, 1954
• Status: Published

Opinion

Order reversed, with $10 costs and disbursements and motion denied, with $10 costs. Memorandum: The plaintiff demanded a verified bill of particulars relating to defendant’s answer and counterclaim. Defendant did not comply with the demand and plaintiff moved for an order precluding the defendant “ from appearing herein, striking out his answer and counterclaim and from giving any evidence upon the trial or inquest herein concerning any of the matters alleged in his alleged answer and counterclaim.” The appeal is from the order granting that motion in all respects. While the defendant failed to move to vacate or modify the demand for a bill of particulars, the order of preclusion was not mandatory. Discretion still resided in the court. Since the demand contained items not properly within the purview of a bill of particulars, it was an improvident exercise of discretion to grant the motion to preclude. In any event the preclusion order should have gone no further than to preclude the defendant from giving evidence as to those matters of which particulars had been demanded and not furnished. Defendant was entitled to appear and answer, and it was error to strike out his answer and counterclaim and to preclude him from appearing and from giving any evidence concerning any of the matters alleged in his answer and counterclaim. All concur. (Appeal from an order precluding defendant Detro from appearing, striking out his answer and counterclaim, and precluding him from giving any evidence upon the trial concerning allegations in the answer and counterclaim in an action to cancel of record a bond and mortgage.) Present — McCurn, P. J., Vaughan, Kimball, Piper and Wheeler, JJ.