Tannenbaum v. Forest Hills Foundation, Inc. , 135 N.Y.S.2d 803 ( 1954 )

Defendant appeals from so much of an order which grants its motion for leave to discontinue its counterclaim, setoff and seventh defense contained in its amended answer as conditions the granting of the motion on defendant’s service of a bill of particulars. Order, insofar as appealed from, modified by striking from the ordering paragraph thereof everything following the word “granted”. As so modified, order affirmed, without costs. The motion was, in effect, for leave to amend defendant’s amended answer. It was addressed to the discretion of the court. The court had power to impose terms as a condition for the granting of the motion (Civ. Prac. Act, § 105), but we are of opinion that to impose the condition that defendant serve a bill of particulars, which bill the court had previously ordered it to serve, and which bill would have to include particulars of the portion of the pleading which is to be elided, was an improvident exercise of discretion. Adel, Acting P. J., Wenzel, MacCrate, Beldock and Murphy, JJ., concur.