
    Embassy Cooperative, Inc., Appellant, v. Chestnut Construction Corp. et al., Respondents.
   Order entered May 4, 1962, denying plaintiff’s motion to modify defendants’ demand for a bill of particulars, modified on the law and in the exercise of discretion to the extent of striking item 7 (a) and eliminating from the demand the words in detail ” and “ exactly ” wherever they appear, and as so modified the order is affirmed, without costs. Item 7 (a) calls for particulars with respect to defendants’ alleged waiver, modification or excusal of performance of conditions precedent. However, the performance or nonperformance of conditions precedent was not put in issue by defendants in their answer in the manner required by rule 92 of the Rules of Civil Practice. In the circumstances, the pleading of waiver, modification or excusal of performance is surplusage and consequently item 7 (a) must be stricken. Concur — Rabin, J. P., McNally, Eager and Steuer, JJ.; Stevens, J., dissents and votes to affirm. Settle order on notice.  