
    Utica Trust and Deposit Company and Another, Respondents, v. John M. Sutton, Appellant.
    Fourth Department,
    March 21, 1932.
    
      John M. Sutton in person, and Lee, Brennan & Bastow, for the appellant.
    
      Miller & Hubbell [Edward M. Brown and Alexander Pirnie of counsel], for the respondent.
   Per Curiam.

Defendant made a demand for a bill of particulars of the complaint, not under section 246 of the Civil Practice Act, for the action was not on an account, but on the ground that rule 115 of the Rules of Civil Practice now recognizes such a demand under section 247 of the Civil Practice Act. Following the practice laid down in Kellogg v. Paine (8 How. Pr. 329); Dowdney v. Volkening (37 N. Y. Super. Ct. [5 J. & S.] 313) and Main v. Pender (88 App. Div. 237) (all decided before the adoption of rule 115 of the Rules of Civil Practice, June 17, 1921), plaintiff moved to “ strike out the demand.” The learned Special Term granted the motion in part and denied it in part, directing that certain particulars be furnished. Defendant has appealed; plaintiff has not. Defendant was within his rights in serving the demand for the purpose of laying the ground work for motion costs under rule 115 of the Rules of Civil Practice upon a motion he might later make for a bill of particulars under section 247 of the Civil Practice Act. Except for its bearing on the awarding of costs upon such a motion, the demand was not effective. Because of the provisions of rule 115 the Special Term should have denied the motion to strike out. The adoption of rule 115 of the Rules of Civil Practice has rendered the practice followed by plaintiff under the authorities cited above obsolete. The remainder of the order requiring particulars to be given was entirely voluntary, no motion for a bill of particulars being properly before the court. However, as stated, no appeal has been taken from this part of the order.

The order in so far as appealed from should, therefore, be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

All concur. Present — Sears, P. J., Crouch, Taylor, Edgcomb and Thompson, JJ.

Order so far as appealed from, reversed on the law, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  