
    (56 Misc. Rep. 434.)
    POLLACK v. WIENER et al.
    (Supreme Court, Appellate Term.
    November 29, 1907.)
    Pleading—Bill of Particulars—Counterclaim.
    Pursuant to an order to file a bill of particulars of a counterclaim, providing that in case of default the defendants would be precluded from giving evidence in support of the counterclaim, defendants filed a bill claimed to be in compliance with the order, and no further steps were taken by plaintiff with reference to the bill until the case came on for trial. Melcl, that plaintiff, having failed to move before trial for a further bill of particulars, could not object to receiving evidence of the counterclaim.
    Appeal from Municipal Court, Borough of Manhattan, Seventh District.
    Action by Jacob Pollack against Louis Wiener and others. Erom a judgment for plaintiff, defendants appeal. Reversed.
    Argued before GILDERSLEEVE, P. J., and LEVENTRITT and ERLANGER, JJ.
    Rudolph Cherurg, for appellants.
    Laurence J. Bershad, for respondent.
   LEVENTRITT, J.

The plaintiff sued to recover an unpaid balance for carpenter work performed under a contract with the defendants, who pleaded a general denial and set up a counterclaim for damages resulting from a breach of the contract. Upon the defendants’ failure to comply with a demand made for 'the particulars of the counterclaim, the plaintiff moved for a bill, and the motion was, on the 14th of January, 1907, granted by default, and thereafter an order was entered reciting the particulars which the defendants1 should furnish within three days, and providing that upon failure to comply the defendants would be precluded from offering on the trial proof in support of their counterclaim. Within the specified time the defendants filed a bill which they claimed was a compliance with the’ order. No further steps were taken by the plaintiff with reference to the bill. The cause came to trial before a jury on the 16th of April, 1907, and when the defendants tendered evidence to sustain their counterclaim the plaintiff objected that the bill filed was not in compliance with the order, and invoked the provision which precluded the evidence. The defendants insisted that the order had been obeyed; but the learned trial justice held to the contrary, rejected the testimony, and the defendants excepted to the ruling. From a judgment entered upon a verdict in favor of the plaintiff, the defendants appealed, assigning as error the rejection of the evidence offered.

It was error to exclude evidence of the counterclaim. The defendants, having served a bill which they deemed a compliance with the order, were not in default.' If the plaintiff claimed the bill defective or insufficient, he should have moved for a further bill. He cannot wait until the trial, without intimating that the bill does not meet the requirements of the order, and then for the first time advance his objection and invoke the drastic provision precluding the giving of testimony. Faller v. Ranger, 99 App. Div. 374, 91 N. Y. Supp. 205; Reader v. Haggin, 114 App. Div. 112, 99 N. Y. Supp. 681.

Judgment reversed, and new trial ordered, with costs to appellant to abide event. All concur.  