
    Julia Connolly, as Administratrix, etc., of Patrick Connolly, Deceased, Respondent, v. Charles T. Wills, Inc., Appellant.
    First Department,
    October 21, 1910.
    Pleading — bill of particulars—motion for further particulars.
    Where an order requiring the plaintiff to serve a bill of particulars of specified items which was not complied with remains unmodified, unreversed, and there is no appeal therefrom, it is improper to deny the defendant’s motion for further particulars of those items.
    A mere affidavit of the plaintiff’s attorney that the bill of particulars which was served gives all the information that the plaintiff is able to give, as the deponent believes, and fully apprises the defendant of the claim made, does not excuse him from giving the items required.
    Appeal by the defendant, Charles T. Wills, Inc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the. clerk of the county of New York on the 17th day of May, 1910, denying the defendant’s motion for a further bill of particulars.
    
      William L. O'Brion of counsel Fraiik V. Johnson, attorney], for the appellant.
    
      Leonard F. Fish of counsel [Thomas J. O'Neill, attorney], for the respondent.
   Per Curiam :

On October 26, 1909, an order of the Special Term was made requiring the plaintiff to serve a verified bill of particulars setting forth in detail, among other things, the following: “ 5. The names of defendant’s employees charged with and exercising superintendence, referred to in paragraph Second ’ of the complaint; also a statement showing what acts of superintendence resulted in the death of plaintiff’s intestate.”

Thereafter a verified bill of particulars was served, but no attempt was made to comply with the requirement of paragraph 5 of the order above set forth. Thereafter a notice of motion for a verified further bill of particulars in regard to the said matters was made. In answer thereto the attorney for the plaintiff submitted his own affidavit, in which he states: “ The bill of particulars as served to the defendant gives all the information which the plaintiff is able to give so far as I know. It fully apprises the defendant of the claim of neglect made, and the plaintiff can give no further information.” Thereupon an order denying the motion was made and the defendant appeals.

The order requiring the particular information referred to remaining unmodified, unreversed and unappealed from, has not been complied with. The affidavit of the attorney furnishes no excuse for the plaintiff’s non-compliance with said order.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs to the appellant.

Present — Ingraham, P. J., McLaughlin, Laughlin, Clarke and Soott, JJ.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.  