
    WEBER v. COLUMBIA AMUSEMENT CO.
    (Supreme Court, Appellate Division, First Department.
    December 20, 1912.)
    Pleading (§ 323*)—Bill of Particulars—Particulars of Defense Pending Discovert.
    Where the necessity for obtaining evidence from the plaintiff to establish an affirmative defense authorized the making of an order for plaintiff’s examination before trial, an order directing the defendant to serve a bill of particulars in advance of obtaining the order necessary to make it should not be granted pending the order for examination.
    [Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 976-979; Dec. Dig. § 323.*]
    Appeal from Special Term, New York County.
    Action by L. Lawrence Weber against the Columbia Amusement Company. From an order directing the defendant to serve a bill of particulars, defendant appeals. Order reversed, with leave to renew.
    See, also, 138 N. Y. Supp. 878.
    Argued before INGRAHAM, P. J., and LAUGHLIN, CLARKE, SCOTT, and MILLER, JJ.
    Leon Laski, of New York City, for appellant.
    Hays, Hershfield & Wolf, of New York City (Gabriel I. Lewis, of New York City, of counsel), for respondent.
   PER CURIAM.

The order appealed from required the defendant to make and serve a verified bill of particulars of the facts set up in the affirmative defense. It was the necessity for obtaining the evidence from the plaintiff to establish said affirmative defense which authorized the making of the order for his examination before trial, affirmed in the opinion herein handed down this day. 138 N. Y. Supp.'878. To require defendant to furnish a bill of particulars in advance of obtaining the evidence necessary to make it seems incongruous. The two orders were made upon the same date, and should not be outstanding at the same time.

This order is reversed, with leave to renew after the examination before trial of the plaintiff is completed, without costs to either party.  