
    Alfred Cossman, Appellant, v. William Ballin, Respondent.
    Second Department,
    November 18, 1910.
    Pleading—-bill of particulars — motion to preclude party from giving evidence—-practice—«modification of order after expiration of time to appeal.
    Where a defendant sued .for the value of goods sold has failed’ to comply with an order.requiring him to give a bill of particulars of items making up a counterclaim, has refused to give further particulars as ordered, and there" is.no appeal from, the order, the plaintiff is entitled to an "order precluding the defendant from giving evidence of the items of which he has failed to give -proper particulars.
    
      It seems, however, that the defendant may move for a modification of the .order requiring him to give particulars, even though the time limited for an appeal therefrom has expired.
    
      Appeal by the plaintiff, Alfred Cossman, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the. clerk of the county of Kings on the 22d day of September, 1910, denying the plaintiff’s motion that' defendant be precluded from giving evidence as to certain parts of the affirmative allegations in his answer.'
    
      Walter H. Griffin, for the appellant.
    
      Jesse 8. Epstein, for the respondent.
   Thomas, J.:

The Taylor Silk Manufacturing Company sold silk mufflers and handkerchiefs to the defendant, and this' action is brought by an assignee of the claim to recover the sum of $2,615.67. The defendant admits the cause of action, but sets up two counterclaims, first, that between February 4, 1908, and April 1,1908, the Taylor Company sold defendant 16,000 dozen silk mufflers and handkerchiefs of a particular' design and fabric, and in color combinations or assortments, and delivered 6,862 dozen, which were not of the " agreed color combinations and assortments, whereby the defendant was damaged in the sum of $3,000, and, second, that the Taylor Company failed to deliver the balance, to wit, 9,138 dozen, whereby the defendant was damaged in the sum of $4,500. ' •

The defendant having failed to serve a bill of particulars upon demand, the court (Kelly, J., presiding), on January 31, 1910, ordered that a bill.,of particulars consisting of nine items be served. Items 5 and 6 require the. defendant to state “ The style numbers, if any, the particular design, fabric, and the color combinations or assortments of the handkerchiefs ” and “ mufflers ” delivered and. not delivered which are the subject of the counterclaim. A bill of particulars was served and returned as not in conformity with the order. This bill gave. the numbers and then stated that The design and fabric of these handkerchiefs were to be in accordance with the samples shown the defendant by representatives of the Taylor Silk Manufacturing Co., and they were to consist of a fair color combination and assortment, such as had been delivered by the Taylor Silk Manufacturing Co. to' the defendant for a. period of upwards of fifteen (15) years.” Thereupon plaintiff moved for a further bill of particulars, and this was ordered by the court (Stapleton, J., presiding) on April 1,1910. This order directs a statement of “ The style numbers, if any, the particular design,. fabric and color combinations or assortments of the handkerchiefs ” and “ mufflers,” and also' directs statement of the dates and amounts of payments alleged .in paragraph 10 of the answer to have been made, as well as of the items making up the alleged dam- ' ages of $3,000 and $4,500, as above given. Thereafter the defendant served no further bill, and the court (GtAeeetson, J., presiding), on September 22, 1910, denied plaintiff’s motion to preclude the defendant from giving evidence in reference to the. particulars directed by Stapleton, J., without prejudice. ' The learned justice filed a memorandum that the failure of the defendant should be stated ■ to the court on the trial and its ruling taken thereon. The plaintiff’s practice in moving to preclude the defendant from.giving evidence respecting the items-whereof he had failed.to deliver a bill of particulars was proper. (Gebhard v. Parker, 120 N. Y. 33; Smith v. Bradstreet Co., 134 App. Div. 567.) As there has been • ho appeal from the order of Mr. Justice Stapleton, and as such order admitted of no latitude from compliance, the motion should have been granted. ■ However, it will'be observed that the defendant stated that the design, and fabric of the handkerchiefs wore to be in accordance with the samples shown by the seller’s agent, and that they were to consist of a fair color combination and assortment, which the defendant claims is a commercial term, and that the damages arose through failure to deliver goods in accord with the samples and of such fair color- combination and assortment. While the order of Mr. Justice Stapleton remains effective, the order to preclude must be granted. ‘But it is within the power of the defendant to move for a modification of such order, even if the time limited for ah appeal .therefrom has expired-. Upon such motion the court could be advised that the defendant admits that the amount unpaid is stated correctly in the complaint, and that there is no occasion to particularize in that regard, and . could scrutinize the requirement that the defendant give a more detailed-statement of the items of damages alleged. It could be brought tq ' its-attention that the style numbers of; the handkerchiefs and mufflers were giveii in the bill'of particulars, and.that repetition thereof. in the further' bill of particulars is not necessary. In addition, the ■ court could, consider whether the defendant should be required to give so detailed a statement of “ the particular design, fabric and color combinations or assortments ” as the' order requires.. It may be that some description more general than that suggested by the order would apprise the plaintiff of the defendant’s claim and furnish him with all useful information within the defendant’s expect-able knowledge, recollection and capacity for description.

The order should be reversed, with ten dollars costs and disbursements.

Woodward, Bühr, Rich and Cabe, JJ., concurred.

Order reversed,, with ten dollars costs and disbursements, and motion granted.  