Weber v. Columbia Amusement Co.

154 A.D. 882, 138 N.Y.S. 879

Opinion

Per Curiam:

The order appealed from required the defendant to make and serve a verified bill of particulars of the facts set up in the affirmative defense. It was the necessity for obtaining the evidence from the plaintiff to establish said affirmative defense which authorized the making of the order for his examination before trial, affirmed in the opinion herein handed down this day. (Weber v. Columbia Amusement Co., No. 1, ante, p. 881.) To require defendant to furnish a bill of particulars in advance of obtaining the evidence necessary to make it seems incongruous. The two orders were made upon the same date and should not be outstanding at the same timé. This order is reversed, with leave to renew after the examination before trial of the plaintiff is completed, without costs to either party. Present — Ingraham, P. J., Laughlin,. Clarke, Scott and Miller, JJ. Order reversed, without costs, with leave to renew as slated in opinion. Order to be settled on notice.