
    Mortimer H. Coleman, Plaintiff, v. Ted’s Auto Sales, Inc., et al., Defendants.
    Supreme Court, Special Term, Kings County,
    March 26, 1962.
    
      Irving I. Branckvein for defendants. Rubinton, Coleman & Ostrow for plaintiff.
   Anthony J. DiGiovanna, J.

Three motions. The first is a motion for an order vacating the notice of examination before trial to the plaintiff.

The action was commenced on July 31, 1961. An answer was served on September 18, 1961. On September 28, 1961 plaintiff served a notice to examine the defendants before trial and made a motion to dismiss the affirmative defense and counterclaim on the ground that both were insufficient as a matter of law. On October 9, 1961 the defendants moved to vacate the plaintiff’s notice to examine on the ground that the notice was premature since issue had not been completely joined. On October 13, 1961 the defense and counterclaim were dismissed with leave to amend within 20 days. The order was served upon the defendants on November 15,1961. Since no amended answer , has been served and the time to serve it expired on December 8, 1961, it may be assumed that the original answer, with the exception of the defense and counterclaim, served to join issue. On November 14,1961 an order was made vacating the plaintiff’s notice to examine the defendants before trial upon the theory that the defendants’ time to serve an amended answer had not yet expired. On December 4, 1961, without having first served an amended answer, the defendants served a notice upon the plaintiff to examine the plaintiff before trial. Evidently, even though, they chose not to serve an amended answer and the time to do so had not yet expired, by serving this notice on December 4,1961 the defendants sought to grasp the opportunity, not previously available to them, of examining the plaintiff first.

I am in accord with the contention of the plaintiff that the plaintiff’s examination of the defendants should proceed first. Consequently the motion to vacate the notice of examination before trial, served by the defendants upon the plaintiff, is denied, with the condition, however, that the defendants are to be examined by the plaintiff before the plaintiff may be examined by the defendants.

The motion by the defendants to vacate the notice of examination before trial is denied. The third-party complaint having been dismissed, there is no longer any concern as to whether it was served with the notice of examination.

Motion to vacate or modify the demand for a bill of particulars. A first demand was vacated by order made November 13, 1961. The demand for the bill of particulars had been served on December 27, 1961. The notice to examine the defendants was served by the plaintiff on September 28, 1961. The dismissal of the demand for a bill of particulars on November 13 was based upon the conclusion by the court that the demand was prolix, cumbersome and impossible of compliance. The present motion to vacate is denied as to item 1; denied as to item 2 except that item 2 (h) is stricken; denied as to item 3 except that if the plaintiff is presently unable to answer until the completion of the examination before trial he may so state under oath at this time and leave is given to him to serve a further bill of particulars with respect to this item within 10 days after the completion of the examination before trial of the defendants. Granted as to paragraph Fourth; granted as to paragraph Fifth; denied as to paragraphs Sixth, Seventh, Eighth and Ninth except that particularization sought is not necessary; a general statement with respect thereto is sufficient. Granted as to paragraph Eleventh.  