
    Third Department,
    June, 1923.
    Lee E. Jones, Respondent, v. Iva McMillan, Appellant, Impleaded with Others, Defendants.
    
      Pleadings—bill of particulars — when modified.
    
    Appeal by the defendant, Iva McMillan, from an order of the Supreme Court, made at the Schenectady Special Term and entered in the Washington county clerk’s office on April 2, 1923, directing her to serve a bill of particulars.
   Per Curiam:

We think the court in its discretion properly made an order requiring the defendant to furnish a bill of particulars as to the time of day and day of the week and place of the assault. We do not think in view of the answer of the defendant that she is unable to state the exact date in the month of May, 1922, of the assault, that it should be required. Nor do we think the defendant should be required to furnish details of the manner of the assault, if one there was, for such knowledge lies as much in the knowledge of the plaintiff as in the defendant. (Messer v. Aaron, 101 App. Div. 170.) The motion did not demand particulars of the “ surrounding circumstances;” it was, therefore, improper to' include them in the order. The order should be modified in accordance herewith and as so modified affirmed, without costs. Order modified in accordance with memorandum per curiam, and as so modified unanimously affirmed, without eosts.  