Charles W. Foster, Respondent, v. Harry F. Curtis and Arthur B. Sederquist, Appellants

Charles W. Foster, Respondent, v. Harry F. Curtis and Arthur B. Sederquist, Appellants. First Department, October 25, 1907. Practice — bill of particulars—provision excluding evidence. ■ An order requiring a defendant to give a bill of particulars should not direct that in the event of failure to comply he is estopped from proving Ms defense er counterclaim. The plaintiff is only entitled to an order excluding evidence ' after the defendant fails to give the items ordered. Appeal by the defendants, Harry F. Curtis and another, from so much of 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 23d day of July, 1907, as grants the plaintiff’s motion for a verified bill of .particulars of the matters set forth in the first and second defenses of the defendants’ answer and directs that in the event of defendants’- failure to comply with the terms of the order they be estopped from proving any defenses or counterclaims set forth in the answer. Edwin C. Vogel, for the appellants.. Alexander S. Bacon, for the respondent. [MAJORITY — Ingraham, J.:] Ingraham, J.: Upon the papers presented I think the plaintiff was entitled to the particulars required to be furnished. The'order should be modified, however, by striking out the provision imposing a penalty for a failure to file the bill of particulars required by the order. " If a bill of particulars, as required should not be furnished, the plaintiff may then apply to the court for an order preventing the defendants from giving any evidence as to the items about which the bill of particulars vas ordered; but until there has been a default this provision is improper. It follows that the order appealed from must be modified by striking ont the last clause of the order, 'and as modified affirmed, without costs. Patterson, P. J., Laughlin, Clarke and Houghton, JJ.,, concurred. Qr.der modified as directed in. opinión, and . as modified affirmed, without costs.- Settle order on notice.