Pepsi-Cola Co. v. Coca-Cola Co. , 1941 N.Y. App. Div. LEXIS 8122 ( 1941 )

Order, dated September 17, 1940, denying in part the plaintiff’s motion to modify the defendant’s demand for a bill of particulars of the amended reply, modified by vacating items numbered 14(g), 15(e) and 15(f) in the demand. As so modified, the order, in so far as appealed from, is affirmed, without costs. We disallow the foregoing items for the reason that acquiescence, as a defense, is based on silence or inaction. (Pollits v. Wabash R. R. Co., 207 N. Y. 113, 129.) To ask for particulars of acts constituting acquiescence is to ask the plaintiff to particularize a negative. Lazansky, P. J., Carswell, Johnston, Adel and Close, JJ., concur.