McKeown v. Foster , 153 N.Y.S. 983 ( 1915 )

BIJUR, J.

[1] During the past year, defendant has procured three separate bills of particulars, each one containing different information. The merit of the defendant’s position would be much stronger if he had made one demand for all this information, instead of harassing the plaintiff with this series of demands. While perhaps plaintiff’s last bill of particulars does not literally comply with the order requiring it, an order of preclusion cannot be made until defendant has demanded a further bill of particulars as to the items alleged to have been omitted, and they have not been furnished. Reader v. Haggin, 114 App. Div. 112, 99 N. Y. Supp. 681. Even then it seems doubtful whether a motion to preclude should be granted in this case.

[2-4] Plaintiff sues for injuries received through having stepped upon an iron grating on the sidewalk in front of defendant’s premises, and claims to have been injured because of the defective condition of the grating. The order requires plaintiff to state (among other particulars) “the object and purpose for which plaintiff stepped upon the grating.” The bill of particulars alleges that plaintiff was returning from school, on his way home, and was passing along the highway when he stepped upon the grating. This, as I understand it, sufficiently indicates the purpose for which he stepped upon it. But plaintiff’s purpose in stepping upon the grating is no part of his "claim,” as to which particulars may properly be demanded. That particular point, however, is not before us, because plaintiff has not appealed from the order directing the giving of the bill, but has apparently endeavored to comply with it. We cannot, however, close our eyes to the patent consideration that an order precluding plaintiff from giving evidence as to the object and purpose for which he stepped upon the grating would be a mere useless fulmination, since such evidence is entirely unnecessary to establish plaintiff’s claim.

[5] The order appealed from precludes the plaintiff from giving any evidence as to the allegations in the ninth paragraph of the complaint, but the particulars as to which plaintiff is claimed to be in default are not, either actually or inferentially, a part of the allegations of said ninth paragraph, and the order for that reason, also, is unwarranted. See last sentence of section 531 of the Code of Civil Procedure.

The order must therefore be reversed, with $10 costs and disbursements, and motion denied, with $10 costs. All concur.