Lupton v. Lupton

229 A.D. 788

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 15, 1930
• Status: Published

Opinion

Order granting in part plaintiff’s motion to preclude defendant from giving certain evidence upon the trial, denying defendant’s motion to open her default in serving bill of particulars, and denying her motion for a modification of the order for a bill of particulars reversed upon the law and the facts, with ten dollars costs and disbursements, motion to preclude denied, without costs, motion to open default granted, with ten dollars costs, and motion for modification granted, without costs, to the extent of requiring defendant within ten days from the entry of the order herein, to give any other particulars that she may have, with reasonable certainty as to times and places; and if she have no such further particulars, that she furnish a statement to that effect. The particulars given by defendant do not show specific acts of adultery but do show opportunity. It inclination be also proved, then the fact may be demonstrated. Defendant cannot state more than she knows. If upon the trial she seeks to present facts beyond what she has particularized, the trial court may give such relief to plaintiff as the situation requires. Lazansky, P. J., Rich, Kapper, Hagarty and Scudder, JJ., concur.