Suto v. Musella

274 A.D. 952, 83 N.Y.S.2d 451, 1948 N.Y. App. Div. LEXIS 4228

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 10, 1948
• Status: Published

Opinion

Plaintiffs appeal from an order of the Supreme Court at Special Term, Rensselaer County, which directed them to serve a further bill of particulars. The actions are laid in negligence and arise out of an automobile accident. Defendants Musella served upon the plaintiffs a demand for a bill of particulars. Some of the items requested were improper, but plaintiffs did not move to vacate or modify the demand as to such items, as they might have done under rule 115 of the Rules of Civil Practice. Instead they furnished a partial bill, omitting items they deemed objectionable. Subsequently the defendants moved for a further bill, again specifying demands which the plaintiffs had failed to answer. The court below granted their motion, holding that the failure of plaintiffs to move to vacate or modify the original demand entitled the defendants to relief demanded. Although such failure to move to modify did not preclude the court from ruling on the propriety of the items demanded as a matter of law, the order appealed from was entirely discretionary and should be affirmed. Order unanimously affirmed, with $10 costs and disbursements. Present — Hill, P. J., Brewster, Foster, Russell and Deyo, JJ.