
    First Department,
    April, 1961
    (April 4, 1961)
    Meyer Jeshion et al., Appellants, v. David L. Holzer, Respondent.
   Order, entered on December 15, 1960, staying plaintiffs from examining defendant before trial until 10 days after service of a sufficient further bill of particulars as to certain items of the demand incident thereto, relieving defendant from furnishing an account until service of such further bill of particulars, and precluding plaintiffs from giving evidence at the trial of the action of any of such items of the demand unless a further bill is served within 10 days after service of a copy of the order with notice of entry, reversed, on the law, on the facts and in the exercise of discretion, with $10 costs and disbursements to the appellants, and defendant’s motion denied, with $10 costs. The bill of particulars served by plaintiffs properly complied with the demand. The bill is 25 pages in length, with 7 exhibits containing in excess of 100 additional pages. Of a total of 111 items and subdivisions in" the demand, defendant objected to 16 in the bill of particulars upon the ground that plaintiffs had failed to allege lack of knowledge in the motion to modify the demand. That objection, based upon Burke v. Brown (180 Misc. 903, affd. 266 App. Div. 962), should not have been sustained under the circumstances. It appears that such lack of knowledge had already been alleged in an earlier bill of particulars served in connection with a complaint that had been superseded by a subsequent amended complaint. Considering that fact,' the failure to observe the technical requirements of the rule in Burke v. Brown (supra) should have been disregarded, since defendant could not possibly have been misled in view of the antecedent disclaimer of knowledge in the earlier bill- of particulars. Concur —- Breitel, J. P., Valente, Stevens and Bastow, JJ.; McNally, J., dissents in part in the following memorandum: I dissent and vote to modify the order of preclusion to provide .that plaintiffs be precluded from offering evidence with reference to the 16 items unless within 20 days from the date of the entry of the order herein a sufficient bill of particulars be served as ordered, with leave, however, to plaintiffs to apply at Special Term for relief under the original order directing the service of the bill of particulars. (Burke v. Brown, 180 Misc. 903, affd. 266 App. Div. 962.)  