Raff v. Koster, Bial & Co.

38 A.D. 336

Opinion

Ingraham, J. :

On July 27, 1898, an order was made requiring the defendant to serve a further bill of particulars of the defendant’s defenses and counterclaims in the. amended answer. In compliance with this order it seems that the defendant served a bill of particulars which the plaintiffs claimed was not a compliance with the order, and subsequently the plaintiffs moved upon affidavit for an order striking out the amended answer of the defendant for non-compliance with said order requiring a further bill of particulars. That motion was granted and it was ordered that the defendant’s amended answer be in all respects stricken out. The plaintiffs then made a motion tqion notice for an order directing the clerk to enter judgment for the plaintiffs for the sum of money and interest demanded in the complaint. ■ This motion- was granted and the plaintiffs- were given an additional allowance. Upon this order judgment in favor of the plaintiffs was ordered, and this appéal is from such judgment.

In the notice of appeal from the judgment the appellant sought to review the order of July twenty-seventh, requiring the defendant to serve a further bill of particulars, and the order of November 7, 1898, striking out the amended answer of the defendant for failure to serve the bill of particulars, and the order of December 1, 1898, awarding the plaintiffs judgment upon such order so striking out said answer as aforesaid. It appears that the order of ¡November seventh, striking out the amended answer of the defendant, and the order of December first, awarding to the plaintiffs judgment upon the order striking out the said answer, were reversed by this court upon an appeal from such orders. Those orders having been reversed, the foundation of this judgment is gone and the judgment so' appealed from must, therefore, be reversed.

■ The plaintiffs ón this appeal also seek to review the order granting the motion for a bill of particulars. That order,- however, cannot be reviewed on the appeal from the judgment. Section 1316 of the Code of Civil Procedure provides that “An appeal taken from a final judgment brings up for review * * * - an intermediate order, which is specified in the notice of appeal, and necessarily affects the final judgment.” An order for a bill of particulars is not such an order. A bill of particulars so required is simply am extension of the pleading in relation to which it is ordered and has no relation to the final judgment. It does not “ necessarily affect ” the judgment, but has relation to preparing the issues to be presented to the court upon the trial. After a trial of the issues it would not be material whether a bill of particulars had or had .not been ordered, and the court would not be justified in reversing a judgment entered on a verdict or on the decision of the Special Term or the report of a referee, because a bill of particulars had been improperly required or. refused. It is only orders which, if reversed, would take away the foundation of the judgment or make the trial or the judgment entered invalid or without support that can be reviewed on an appeal from the- judgment. There is a plain distinction between orders that thus directly affect the judgment, and orders which relate to the pleadings or procedure in the action. An order to amend a pleading, or for a bill of particulars not - necessarily affecting the final judgment, is not included within the orders that can here viewed upon an appeal from the final judgment.

The judgment should be reversed, with costs to appellant to abide the event.

Van Brunt, P. J., Barrett, Eumsey and O’Brien, JJ., concurred.

Judgment reversed, with costs to appellant to abide event.