William Prym, Appellant, v. Peck & Mack Company, Respondent

William Prym, Appellant, v. Peck & Mack Company, Respondent. First Department, February 4, 1910. Pleading — bill of particulars — stay of proceedings — practice. When two" months have expired since the granting of an order requiring the plaintiff to file a bill of particulars it is improper to resettle it so as to ¡stay all proceedings on his part, for it would invalidate proceedings taken led interim. Under no circumstances should an order for a bill of particulars stay all proceedings in the action, for there may be many proper proceedings which have no relation to the service of the bill. The penalty for non-compliance with an order for a bill of particulars is to be determined when the failure to comply therewith has been established. A provision in the • original order imposing a penalty for a failure to obey it is improper. Appeal by the plaintiff, William Prym, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 31st day of December, 1909, resettling an order granting a bill of particulars. Maxwell O. Katz of counsel \_Katz d6 Sommerich, attorneys], for the appellant. Franklvn Bien, for the respondent. [MAJORITY — Clarke, J.:] Clarke, J.: On October 22, 1909, the Special Term, upon motion of the defendant, made an order directing plaintiff to make and. serve a bill of particulars. Said order provided : “ Ordered, that until such service all proceedings on the part of the plaintiff or his attorney to force this action to trial be and the same are hereby stayed.” On December 31, 1909, this order was resettled so as to provide as follows: “ Ordered, that until such service all proceedings on the part of the plaintiff and his attorneys be and the same are hereby stayed.” From said order plaintiff appeals. This order must be reversed for these reasons: First, it was improper to resettle an order over two months after it had been entered by providing for a stay of all proceedings, and thereby attempt to invalidate or make ineffective such proceedings as had been taken ad interim. Second, under no circumstances should an order providing for the service of a bill of particulars provide for the stay of all proceedings in an action. There may be many proceedings, advisable of necessary, to be taken in an action having no possible, relation to the service of a bill of particulars, which should not be interfered with. Such provision was unwarranted. Third, the remedy for non-compliance with an order for the service of a bill of particulars is to be determined when the failure to comply has been established; and a provision, in an order providing for the service of a bill of particulars imposing, a penalty for failure to obey said order is improper. (Foster v. Curtis, 121 App. Div. 689.) The order' appealed from should be reversed, with ten dollars costs and disbursements, and the motion to resettle the order of October 22, 1909, denied, with ten dollars costs. Ingraham, P. J., McLaughlin, Scott and Dowling, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.