
    Eleanor Rawls Reader, Appellant, v. James B. Haggin, Respondent.
    First Department,
    June 15, 1906.
    Practice — bill of particulars retained without objection or motion — when order precluding the giving of evidence should not be made.
    When, pursuant to an order, a plaintiff has served a bill of particulars -which was deemed by Mm to comply with the particulars required, and the defendant has neither returned the same nor moved for further particulars on the ground that the particulars furnished were defective, the court should not. grant an order precluding the plaintiff from giving evidence as to certain allegations of the complaint.
    Section 581 of the Code of Civil Procedure authorizes such an order only when the party ordered to serve particulars is in default.
    A return'of the particulars served, or a motion for further particulars complying-with the order, is a prerequisite to an order precluding 'the plaintiff from giving evidence.
    Appeal by the plaintiff, Eleanor Bawls Beader, from an order of the Supreme Court, made at the Mew York Special Term and entered in the office of the clerk of the county of Mew York on the 25th day of April, 1906, directing that the plaintiff be preeluded from giving -evidence of those parts of the affirmative allegations of the complaint as to which particulars were not served as directed.
    
      John J. Kirby, for the appellant.
    
      Clifton P. Williamson, for the respondent.
   O’Brien, P. J.:

Upon the consent of the plaintiff’s attorney an order was entered directing that plaintiff should serve upon the attorney for the defendant a bill of particulars of the plaintiff’s claim, specifying the particulars to be furnished. The plaintiff thereafter served what was claimed to be a sufficient bill of particulars, which was never returned. Mo motion for a further bill was ever made, nor was any indication given that the bill of particulars furnished was not in compliance with the order or was defective in any respect; instead, the defendant served a notice of motion upon the ground that the particulars furnished were insufficient to preclude the plaintiff from giving any testimony with respect to certain allegations of the complaint.

The authority for this practice is claimed to rest on section 531 of the Code of Civil Procedure, which provides as follows: Upon application in any case, the court, or a judge authorized to make an order in the action, may, upon notice, direct a bill of the particulars of the claim of either party to be delivered to the adverse party, and in case of default the court shall preclude him from giving evidence of the part or parts of his affirmative allegation of which particulars have not been delivered.”

It will be noticed upon a literal reading of the section that it is only in case of default in furnishing the bill of particulars that the moving party is entitled to the benefit of the provision which precludes his adversary from giving evidence of the allegations concerning which the latter failed to give particulars. Where, however, there has been no default, and where a party has furnished a bill of particulars which he thinks sufficient, the practice to be followed has been pointed out by this court in the case of Faller v. Ranger (99 App. Div. 374), wherein it was said: “ If the bill as served is deemed defective or insufficient, the one on whom it is served can move for a further bill of particulars; and this is seemingly the more regular and orderly practice. Should he, however, elect to return it, then the party serving it should have the right to compel him to accept it; and on such a motion, the question of whether or not it complies with the order should be decided.”

The practice which we have here suggested will effectually carry out the provisions of section 531 of the Code of Civil Procedure, because where it is pointed out either on the motion of the plaintiff requiring the defendant to accept the bill of particulars in the event that the latter has returned it as insufficient, or, should the defendant retain the bill and move for further particulars, a failure to then comply with the order would present a case of a default in which the provision of the Code, to which reference has been made, would enable the Special Term to protect the rights of the adverse party upon the trial by inserting a provision in the order which would preclude the party in default from giving any evidence with reference to the particulars involved.

The advisability and the fairness of the practice thus pointed out is made apparent in the present case, wherein the plaintiff, who consented and agreed to serve the bill of particulars, and who, in compliance with the order entered on her stipulation, undertook to serve one which was deemed sufficient. We think, however, agreeing with the learned judge at Special Term in this respect, that she has served one which does not fully comply with the directions of the order. Instead, however, of being afforded an opportunity to furnish the further particulars, she is met by an order, the terms of which will preclude her from making the proof which is necessary to sustain many of the allegations of her complaint. She has, of course, a remedy open, which would be to apply to the court for permission to furnish such additional particulars as are deemed proper; but if the practice which we have endeavored to point out in Faller v. Ranger (supra) had been followed, the multiplication of motions could have been avoided.

The question of whether a bill of particulars is or is not sufficient frequently arises; and where a party has endeavored, and as he thought, successfully, to comply with the order to furnish particulars, it would be a harsh rule to apply, because in some particular he may have failed, without giving him any further or other opportunity, to subject him to the rigors of an order which would effectually pre elude him from remedying any defects necessary to fully comply with the terms of the order requiring him to furnish a bill of particulars.

We think that, in view of the form of the motion, it would have been entirely proper for the learned judge at Special Term to have required the plaintiff to furnish such further particulars as would have complied with the original order. This, however, was not the relief sought, and accordingly we must reverse the order, with ten dollars costs and disbursements, and with leave to the respondent to apply to have the appellant furnish the further particulars required by the original order.

Ingraham, McLaughlin, Clarke and Houghton, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and with leave to respondent to apply to have appellant furnish the further particulars required by the original order. Settle order 'on notice.  