
    Zone Oil Trucking Corp., Plaintiff, v. Anthony Grace & Sons, Inc., Defendant.
    Supreme Court, Special Term, Kings County,
    October 16, 1957.
    
      
      John P. Wourms for defendant.
    
      George Halpern for plaintiff.
   Jacob J. Schwartzwald, J.

In this action to recover for property damage sustained as a result of a collision between two trucks owned by the parties, defendant moves to vacate plaintiff’s demand for a bill of particulars. Plaintiff makes a cross motion for an order directing the service of a bill or in the alternative (1) to produce an officer or other employee familiar with the facts at issue, for an oral examination upon the same matters, or (2) directing a discovery and inspection of defendant’s truck and trailer involved in the accident.

It appears that heretofore plaintiff took the deposition of defendant’s chauffeur. The latter did not have knowledge as to the specifications of the defendant’s truck and trailer now demanded in the bill of particulars. Instead of moving for a continuation of the deposition by having the defendant supply an officer or other person having knowledge of the facts sought to be elicited, plaintiff has served a demand for a bill of particulars, as being the most convenient method of securing the information with least trouble to both parties.

The court entertains no doubt that the information sought is necessary and material to the prosecution of plaintiff’s action. However, plaintiff has, in the guise of expediency, changed its course of procedure in the middle of the stream, as it were. In doing so it has apparently lost sight of the relative function of a bill of particulars and of an examination before trial. Defendant’s objection that it may not be required to give particulars of matters which do not constitute a part of its affirmative claim is well taken (Rules Civ. Prac., rule 115; see Silberfeld v. Swiss Bank Corp., 263 App. Div. 1017). Therefore, in the interest of regularity defendant’s motion to vacate plaintiff’s demand for a bill is granted and plaintiff’s motion is granted to the extent of ordering a further examination; otherwise denied.

Settle order on notice.  