
    Fay Silverstein, Respondent, v. B. F. Keith Corporation, Appellant.
    Supreme Court, Appellate Term, Second Department,
    June 13, 1928.
    
      Pettigrew & Glenney and Laurence C. Stryker, for the appellant.
    
      Krieger, Stutsky & Friedman [S. Friedman of counsel], for the respondent.
   Per Curiam.

Order unanimously reversed, upon the law, without costs, and motion remitted to the court below for the exercise of its discretion. The provisions of subdivision 7 of section 78 of the New York City Municipal Court Code provide a method for obtaining a bill of particulars which is not contained in the Civil Practice Act covering Supreme Court actions. By the provisions of the New York City Municipal Court Code a demand for a bill of particulars in a proper case may be filed, and within three days thereafter a bill of particulars must be filed. The Municipal Court is granted power to preclude in the event that a bill is not filed after demand. The section does not require, in addition to the demand, a motion for a bill before the court is empowered to grant an order of preclusion. Before a party can be precluded, however, an order to that effect should be made prior to the trial. (Teitelbaum v. Empire Bottling Works, 100 Misc. 103; Friedman v. Savino, 170 N. Y. Supp. 1041.) Upon the return of the motion to preclude, the court can determine whether any of the items demanded were proper items, and, in the exercise of discretion, may give the party against whom the demand is made a reasonable time to comply with the demand.

All concur; present, Cropsey, McCrate and Lewis, JJ.  