Valentine v. Adriatic Securities Corp.

8 A.D.2d 857, 190 N.Y.S.2d 473, 1959 N.Y. App. Div. LEXIS 7763

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 29, 1959
• Status: Published

Opinion

Appeal from an order-denying appellants’ motion to direct respondents to serve a further bill of partióulars in accordance with a demand dated October 17, 1957 as modified by an order dated December 20, 1957, and a demand for additional particulars dated April 3, 1958, or to preclude them for failure to serve said bill of particulars. The order dated December 20,1957 also gave permission to appellants to serve a demand as to any additional items deemed necessary. Respondents have not served a bill of particulars in accordance with the original demand as modified, but have furnished a bill giving the particulars of the items contained in the second demand, which appellants claim to be insufficient. Order modified by striking from the ordering paragraph the words “this motion is denied” and by substituting therefor the words “ the motion to furnish a further bill of particulars is granted to the extent that the plaintiffs are to serve a bill of particulars in compliance with the demand dated October 17, 1957 as modified by the order dated December 20, 1957.” As so modified, order affirmed, without costs. The bill of particulars is to be served, if respondents be so advised, within 20 days after the entry of the order hereon. The second demand did not take the place of the first demand, but was in addition thereto, as permitted by the order of December 20, 1957. Respondents have not complied with the direction implicit in the order of December 20, 1957 that a bill of particulars be served in compliance therewith. Appellants lost their right to object to the alleged insufficiency of the bill of particulars served in accordance with the demand dated April 3, 1958 (Rules Civ. Prac., rule 115, subd. [d]). Wenzel, Acting P. J., Beldock, Murphy, Hallinan and Kleinfeld, JJ., concur.