
    David Merritt, Appellant, v. John G. Ellis et al., Defendants, and Winthrop Stearns, Inc., Respondent.
   Order reversed as a matter of discretion, without costs of this appeal to any party, and plaintiff’s motion granted, without costs. Memorandum: The history of the transaction and the various communications between counsel for the parties, together with the service and retention of the bill of particulars since April 28, 1954, require a reversal of the order appealed from as a matter of discretion and the granting of plaintiff’s motion. All concur. (Appeal from an order of Orleans Special Term, granting defendant’s motion to preclude and denying plaintiff’s motion to vacate the order of preclusion entered September 14, 1953.) Present — McCurn, P. J., Vaughan, Kimball, Piper and Wheeler, JJ.  