
    Jeremiah Driscoll, Respondent, v. New York Veal and Mutton Company, Appellant.
    (Supreme Court, Appellate Term, First Department,
    February, 1915.)
    Default — when application to open plaintiff’s default denied — motions and orders — bill of particulars.
    Where an application to open plaintiff’s default in failing to comply with an order to furnish a bill of particulars and a motion to preclude him from giving certain evidence because of such default are heard together, the motion will be denied if the default is excused.
    Defendant having been given full opportunity to controvert plaintiff’s excuse had no cause for complaint where plaintiff’s application to open his default was embodied in his affidavit filed in opposition to the motion made by defendant.
    Appeal by the defendant from an order of the City Court of the city of New York, denying defendant’s motion for an order precluding the plaintiff from giving certain evidence upon the trial by reason of plaintiff’s failure to comply with an order directing him to furnish a bill of particulars.
    William A. Jones, Jr. (Fred P. Harrington, of counsel), for appellant.
    Jeremiah A. O’Leary (Ernest M. Garbe, of counsel), for respondent.
   Shearn, J.

Upon "the return of a motion for an order precluding plaintiff from giving evidence because of default in complying with an order for a bill of particulars, plaintiff’s attorney filed an affidavit tending to excuse the default, asking" that the default be opened and that opportunity to serve the bill of particulars be granted on terms.

When an application "to" open a default and a motion to preclude because of the default are heard together the latter motion must fail if the default be excused, for then there is no default.

The application, to open .the default was embodied in the affidavit filed in opposition to the motion to preclude. . An application for an order is a motion. While it would have been better practice to have served a formal notice of motion to open the default, returnable at -the time of the argument of the motion to preclude, it is clearly apparent that the defendant was not prejudiced by the lack' of the usual notice. It is not claimed that full opportunity to controvert the plaintiff’s excuses for default was not afforded. It would have been a. senseless proceeding to have made an order, based on a default when the court had before it at the very time proof that the default was excusable and'-also an application to. open it on proper terms. - " .. \ Y "

When an order requiring a bill of particulars is not complied with, the default should not be lightly excused, but here there was no abuse of discretion.

Order affirmed, without costs, but with disbursements to the respondent.

Gut and Pendleton, JJ., concur.

Order affirmed, without costs, but with disbursements to respondent.  