Sigerist v. McGarrett

Appellate Division of the Supreme Court of New York

Sigerist v. McGarrett

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

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 24, 1958

StatusPublished

This text of 5 A.D.2d 887 (Sigerist v. McGarrett) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Sigerist v. McGarrett, 5 A.D.2d 887, 172 N.Y.S.2d 619, 1958 N.Y. App. Div. LEXIS 6544 (N.Y. Ct. App. 1958).

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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.

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—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.

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Bluebook (online)

5 A.D.2d 887, 172 N.Y.S.2d 619, 1958 N.Y. App. Div. LEXIS 6544, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sigerist-v-mcgarrett-nyappdiv-1958.

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