Reichardt v. Plaut

98 N.Y.S. 195

• Court: Appellate Terms of the Supreme Court of New York
• Decided: March 26, 1906
• Status: Published

Opinion

SCOTT, P. J.

The order for the bill of particulars went much too far. It is unnecessary to require defendants to state wherein the defendants claim that plaintiff was careless and inattentive, and failed to properly supervise the manufacture of goods, and failed to properly examine the merchandise when finished, because all those matters are already stated with sufficient particularity in the fourth paragraph of the answer. The first, second, and fourth items required by the order sh'óuld':tberefo!ré be stnck'eii out. 'The,sixth item.should be limited to njeréhándise other than that' specified in the bill of particulars already served.. The seventh item should be qualified by inserting the word? “if- any” after the words “stating in details the names and addresses of .such patrons of the defendants,” in order that the defendants may not-be.precluded from proving th.e items contained in their voluntary bill .-of particulars. The eighth item should be limited to merchandise not shipped tó patrons, since that which was shipped is covered by the ydluntaky bill of particulars. It is not necessary to 'repeat the statement' of, the shipments which were returned by patrons, as these are covered by the voluntary bill, and their requirement should be stricken out o'f the eleventh item, and that item limited to-merchandise returned, if1 any, not included in the bill of particulars already served. The ampfint of defendants’ loss is immaterial, and the requirement respecting;-it- should be stricken out of the eleventh item. The defendants should.not be required- to furnish the addresses of persons alleged to liáVe been improperly of improvidently employed, and item 13 should be-amended.in this regard. , Item Id should be stricken out altogether. The answer does not allege any employment or salary that plaintiff might- have secured. It only says that he was not diligent in searching for employment. There is no authority for precluding the defendants; iri-case of default in serving the bill of particulars, from giving evidence ,o;f their “defenses.” The Code provision is that they may be precluded ■from'giving evidence of the part or parts of the affirmative allegations 'of which particulars have not been delivered. Section 531, Code Civ. Proc.

.-■The order appealed from should be modified in the respects herein pointed out, and, as modified, affirmed, without costs to either party.

All concur.