Burton Kline, Appellant, v. New York Tribune, Inc., Respondent

Burton Kline, Appellant, v. New York Tribune, Inc., Respondent. First Department, April 30, 1920. Pleadings — bill of particulars — opening default — particulars must be served pursuant to original order. On a motion to open a default in failing to serve a bill of particulars as required by order, from which no appeal has been taken and which has not been modified, the defendant, on the granting rof his motion with leave “ to serve a bill of particulars ” must serve a bill in strict conformity with the terms of the original order, although he unwarrantedly sought on the motion to have the original order modified. Appeal by the plaintiff, Burton Kline, 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 18th day of March, 1920, opening the default of the defendant and granting leave to serve a bill of particulars. Malcolm S. McN. Watts of counsel [Denison & Curtis, attorneys], for the appellant. Harold L. Cross of counsel [Sackett, Chapman & Stevens, attorneys], for the respondent. [MAJORITY — Greenbaum, J.:] Greenbaum, J.: Plaintiff appeals from an order opening the default of the defendant in failing to serve a bill of particulars. On January 2, 1920, an order was entered upon plaintiff’s motion requiring defendant to furnish him the particulars therein directed. The defendant being in default in serving the bill, moved for leave to open its default. The court in a proper exercise of discretion opened the default. Plaintiff’s grievance is that the court upon the motion to open the default did not see fit to state what particulars were to be served. Under the guise of a motion seeking the favor of the court to be relieved from the consequences of its default, the defendant unwarrantedly sought to obtain a change in the terms of the original order of January second. The justice who heard the motion evidently did not heed the defendant’s improper request and simply granted the motion to open the default with leave “ to serve a bill of particulars.” There can be no misunderstanding of the meaning of the order from which this appeal is taken. No appeal having been taken from the order of January second, it is in full force and could not have been modified upon the motion to open the default. Under the order appealed from it is the duty of the defendant to serve a bill in strict conformity with the terms of the original order. Of course, if defendant fails to serve such a bill, plaintiff will be in a position to refuse to accept it and make such motion as might be appropriate under the circumstances in assertion of his rights thereunder. The order must be affirmed, with ten dollars costs and disbursements. Clarke, P. J., Dowling, Smith and Page, JJ., concur. Order affirmed, with ten dollars costs and disbursements.