Opinion
June 30, 1949.
Appeal from Supreme Court, Bronx County, BRISACH, J.
Samuel Meyers of counsel ( David Epstein with him on the brief), for appellant.
Max Berey of counsel ( Shaine, Weinrib, Mallin Gross, attorneys), for respondent.
Defendant appeals from an order granting plaintiff's motion to preclude unless defendant serves a bill of particulars within twenty days. Plaintiff proceeded by demand under rule 115 instead of by a motion for a bill of particulars, and the demand which plaintiff served is so detailed that it covers twenty-seven pages of the printed record. Some of the particulars demanded are proper; many of them call for evidence or are otherwise objectionable. There is nothing in the further amended answer, to which this demand was addressed, calling for such an elaborate and oppressive demand. We have held that where a demand is so unreasonable, meticulous, unnecessarily repetitious and burdensome as to constitute an abuse of the right to a bill of particulars, it should be vacated in its entirety ( Mutual Life Ins. Co. of N.Y. v. Tailored Woman, Inc., 275 App. Div. 798; American Mint Co. v. Ex-Lax, Inc., 260 App. Div. 576, 577).
Although the defendant did not move to modify or vacate this demand within five days after receipt thereof, as provided by rule 115, and under less aggravated circumstances the court might decline to vacate it in the absence of such a motion, jurisdiction to do so is retained. Rule 115 states that if no motion to modify or vacate is made within five days, "the bill of particulars shall be served within ten days after the demand therefor, unless the court or judge shall otherwise direct" (emphasis supplied). A preclusion order is not mandatory under this rule merely because a party failed to furnish a bill of particulars or to move to vacate or modify. Discretion still resides in the court ( Ferri v. Greater N.Y. Brewery, 266 App. Div. 100 5; Peck v. Bandell. 164 Misc. 352).
The order appealed from granting plaintiff's motion to preclude should be reversed and plaintiff's demand for a bill of particulars vacated, with $20 costs and disbursements, with leave to plaintiff to serve a further demand or move for an order for a suitable bill of particulars upon payment of the costs and disbursements of this appeal.
PECK, P.J., DORE, CALLAHAN, VAN VOORHIS and SHIENTAG, JJ., concur.
Order granting plaintiff's motion to preclude unanimously reversed and plaintiff's demand for a bill of particulars vacated, with $20 costs and disbursements, with leave to the plaintiff to serve a further demand or move for an order for a suitable bill of particulars upon payment of said costs.