Opinion
January Term, 1902.
W.A. Sutherland and W.H. Whiting, for the appellant.
M.H. McMath, for the respondent.
Whether the order of September 30, 1901, which directed the plaintiff to serve a bill of particulars of the character therein specified was properly or improperly made, cannot be determined upon this appeal, as that order has not been appealed from and is in full force and effect. While so in force and until reversed, it is conclusive upon the parties as to all matters determined thereby. That order determined that the defendant was entitled to know the particular times at which the plaintiff expected to prove that the defendant committed acts of adultery with plaintiff's wife. Apparently the plaintiff was satisfied with the order, and assumed to comply with its provisions. He, however, failed to do so, as determined by the order appealed from, and for such failure it was further determined by the order that certain proof could not be made by the plaintiff upon the trial of the action. The order appealed from only determined that the bill of particulars last served by the plaintiff was not a compliance with the order previously made, which directed that a bill of particulars be served, and because of that fact, because of the plaintiff's non-compliance, it was determined that he should not be permitted to give certain proof upon the trial of the action. So considered, we think there can be no doubt as to the correctness of the order appealed from, for, clearly, the plaintiff did not serve the bill of particulars directed by the order of September 30, 1901, and that appearing, it was entirely proper for the court to prescribe the penalty which it did because of the plaintiff's non-compliance with the order previously made by it.
It is well settled that in an order directing a party to serve a bill of particulars specifying certain facts respecting his alleged cause of action, it is proper that the order should contain a provision to the effect that if the party fails to comply with such direction proof may not be given in respect to so much of the alleged cause of action as involves such facts. ( Wilson v. Fowler, 44 Hun, 89.)
In Gross v. Clark ( 87 N.Y. 272) it was held that where a plaintiff refuses to obey the order of the court requiring him to furnish a bill of particulars, the court may as a penalty strike out his complaint in the action.
In Gebhard v. Parker ( 120 N.Y. 33) it was held that the proper practice in a case where a party fails to comply with an order directing a bill of particulars, is to apply to the Special Term for an order limiting his proof in respect to the matters involved, so that when the parties come to the trial of the action they may know precisely what questions of fact are to be tried.
In Wilson v. Fowler ( supra) an order had been made, as in the case at bar, directing a bill of particulars to be served. Under that order what purported to be a bill of particulars was served, but in effect it contained no more than a repetition of the pleading, and was not such a statement as was required by the order. An order was then made which directed that the pleading be stricken out because the party failed to comply with the provisions of the previous order, and it was held that such order was fully warranted because of the first order, "which remained in full force at the time when the application was made and heard for the second order."
The conclusion is reached that upon this appeal we are not permitted to consider whether the order of September 30, 1901, was properly or improperly granted, because not appealed from, and that, it being in full force and effect and not having been complied with, the court was justified in imposing the penalty for non-compliance which it did by the order appealed from.
Order affirmed, with ten dollars costs and disbursements to respondent.
SPRING, WILLIAMS and HISCOCK, JJ., concurred; DAVY, J., not sitting.
Order affirmed, with ten dollars costs and disbursements.