
    Norman C. Raff and Frank R. Gammon, Respondents, v. Koster, Bial & Company, Appellant.
    
      Failure to serve a bill of particulars — the whole answer, containing a general denial, a defense of payment and a counterclaim,, should not be stricken out.
    
    Where an answer consists of a general denial, a defense of payment and a counterclaim, the failure of the defendant to comply with an order requiring him to-serve a bill of particulars of the defense and counterclaim should not be visited with the penalty of having the whole answer stricken out.
    
      Semble, that an order should be made in accordance with section 531 of the Code- ■ of Civil Procedure, precluding him from giving evidence in support of the counterclaim and defense.
    Appeal by the defendant, Foster, Bial & Company, from an order of the Supreme Court, made at the New York Special Term, bearing date the 7th day of November, 1898, as resettled by an order made at the New York Special Term and entered in the office of the clerk of the county of New York on the 16th day of November, 1898, striking out in all respects the defendant’s amended answer.
    
      Edward W. S. Johnston, for the appellant.
    
      James Harold Warner, for the respondents.
   Van Brunt, P. J.:

This action was brought to recover damages for a breach of contract. The amended answer consisted of allegations amounting to a general denial, payment and a counterclaim for damages arising from a breach of the agreement alleged in the complaint and answer. A bill of particulars having been ordered and served, an order was made upon notice directing the defendant to serve a further bill of particulars of the defendant’s defenses and counterclaims. The defendant served a further bill of particulars which, it is claimed, failed to comply with the provisions of the order. Thereupon, a motion was made to strike out the defendant’s answer, which motion was granted, and from the order thereupon entered this appeal is taken.

In the consideration of the questions involved upon this appeal, the propriety of the orders directing the bill of particulars and the further bill of particulars is not before us, they not having been appealed from, and so far as this appeal is concerned the defendant was bound to comply with those orders. ¡Nor is it necessary to discuss the question as to the power of the court to strike out the entire answer of the defendant because of a failure to comply with an order to furnish a bill of particulars in respect to a counterclaim or defense contained in the answer, independent of the general denial; because it seems to us that, even assuming that the court had the power, it should not have stricken out the whole answer for the failure upon the part of the defendant to comply with the order, requiring a bill of particulars of the counterclaim or of the affirmative defenses. The defendant should have been allowed to have the benefit of his general denial, notwithstanding his failure to comply with the orders of the court affecting separate and distinct defenses.

A failure to comply with an order of the court of this character should not be visited with the penalty of having the whole of an answer stricken out, but rather an order should be made in harmony with the rules down in section 531 of the Code of Civil Procedure in respect to the furnishing of a bill of particulars of an account, where, if the party fails to furnish such bill of particulars when properly demanded, he is precluded from giving evidence of the account at the trial.

We think, therefore, that the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Babrett, Rumsey, Patterson and O’Bbien, JJ., concurred.

Order reversed, with ten dollars' costs and disbursements, and motion denied, with ten dollars costs.  