Sevouny v. Henry Hellman Co.

133 Misc. 714, 233 N.Y.S. 332, 1929 N.Y. Misc. LEXIS 697

Opinion

Per Curiam.

Plaintiff having defaulted in the service of a bill of particulars directed to be served by order of the court below, and a subsequent order having been made by that court precluding plaintiff because of his default from offering proof of his alleged cause of action, it was error to make the order appealed from, which although containing no reference to the precluding order in effect reverses that order.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, without prejudice to an application to vacate preclusion order and open default in serving bill of particulars.

Ltd on and Callahan, JJ., concur.

Peters, J. I concur with that portion of the decision of this court reversing the order below, but dissent as to the remaining portion.