Samuel Mundheim Co. v. Scharlach

170 A.D. 944, 155 N.Y.S. 124

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 15, 1915
• Status: Published

Opinion

Per Curiam:

The allegations in the counterclaim, being of special damage, were properly the subjects of a bill of particulars, which the court ordered last February. Defendant has had repeated extensions of time to comply with the order. That nevertheless in July defendant urged that he could not particularize the commissions and the names of his customers so lost, argues that such items are not provable. Such prolonged failure to obey the order for a bill of particulars requires, as matter of course, an order to preclude. (McKenna v. Horwitz & Schanback, 163 App. Div. 541.) It follows that the order appealed from should be reversed, with ten dollars costs and disbursements, and plaintiff’s motion to preclude granted as to the particulars numbered three, five, six and seven of the order of February 6,1915, with ten dollars costs, but without prejudice to a motion to open defendant’s default on such terms as the court may deem proper. Jenks, P. J., Carr, Stapleton, Mills and Putnam, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and plaintiff's motion to preclude granted as to the particulars numbered three, five, six and seven of the order of February 6, 1915, with ten dollars costs, but without prejudice to a motion to open defendant’s default on such terms as the court may deem proper.