Sigerist v. McGarrett

5 A.D.2d 887, 172 N.Y.S.2d 619, 1958 N.Y. App. Div. LEXIS 6544

Opinion

—In an action for an accounting, the appeal is from an order granting a motion to require appellant to serve a verified bill of particulars. The motion was made more than 20 days after appellant had filed a statement of readiness and without respondent having moved to strike the action from the calendar in accordance with the provisions of subdivision (4) of the Special Rule of this court. Order modified by striking from the ordering paragraph item “1”. As so modified, order affirmed, with $10 costs and disbursements to appellant. Item “1” is improper because it seeks the names of witnesses present at the making of an alleged oral agreement of joint venture. This is not a proper function of a bill of particulars (Wilson <& Baillie Mfg. Go. v. Dumary, 140 App. Div. 838). Costs are allowed to appellant in view of the absence of a satisfactory explanation for the lateness of respondent’s motion for a bill of particulars after appellant had filed the statement of readiness and in view of the apparent disregard of the Special Rule of this court.

Present —Wenzel, Acting P. J., Beldock, Murphy, Hallinan and Kleinfeld, JJ.