Opinion
December 6, 1962
Order, entered on September 11, 1962, unanimously modified, on the law and in the exercise of discretion, to the extent of denying defendant-respondent's cross motion to vacate the demand for a bill of particulars, and is otherwise affirmed, with $20 costs and disbursements to defendant-respondent. Defendant is entitled to examine plaintiff as ordered by Special Term, plaintiff's notice for examination being untimely and good cause otherwise being shown to depart from the usual order of examination ( Jeshion v. Holzer, 13 A.D.2d 621). Plaintiff is, nevertheless, entitled to a bill of particulars on the amended answer, the old pleading having been superseded as a matter of law. The examination need not await the bill of particulars, any resulting inconvenience having been caused by plaintiff. Settle order on notice.
Concur — Breitel, J.P., Valente, Stevens, Steuer and Bergan, JJ.