Opinion
March 3, 1952.
In an action for breach of contract or for the reasonable value of services, defendant appeals from three orders. Order of August 8, 1951, granting in part and denying in part plaintiff's motion to vacate or modify notice of examination and to modify demand for a bill of particulars, insofar as appealed from, modified on the law and the facts, by striking out so much of the second ordering paragraph as strikes out item 3 and by further providing therein that otherwise the motion to modify the notice of examination is denied; by striking out the third paragraph; and by striking out the fourth ordering paragraph and by providing in lieu thereof that the motion to modify the demand is denied. As so modified, order affirmed, with $10 costs and disbursements to the defendant. Insofar as appealed from, the defendant is entitled to the examination and bill of particulars in accordance with the items set forth in the notice and demand, without modification. The notice of appeal does not include the striking out of item 7 from the notice of examination and in any event that item was properly struck out. Order of August 8, 1951, denying motion to defer examination before trial of defendant and setting such examination down for a day certain affirmed, with $10 costs and disbursements; examination to proceed on five days' notice. In the light of all the circumstances the defendant was not entitled to a deferment of his examination. Order of September 26, 1951, granting in part and denying in part plaintiff's motion to vacate or modify defendant's further notice of examination and further demand for a bill of particulars, insofar as appealed from, modified on the law and the facts, by striking out the first and second ordering paragraphs and by substituting in lieu thereof a provision denying motion to vacate or modify the further notice of examination or further demand for bill of particulars. As so modified, order affirmed, with $10 costs and disbursements to defendant. Defendant is entitled to a bill of particulars and examination in accordance with the items set forth in his demand and notice. The order, however, correctly conforms to the sequence provided for in the orders of August 8, 1951. Carswell, Acting P.J., Johnston, Adel, Wenzel and MacCrate, JJ., concur.