Fidelity v. Fischbach & Moore, Inc.

270 A.D. 830 | N.Y. App. Div. | 1946

Per Curiam.

Upon .examination of the fourth bill of particulars, we find it sufficient to comply with defendants’ demands, except as to the following items: 3(c) as to acts of defendants; 3(h); 3(i); 4(b); 4(f); 5(c); 5(d); 6(c); 7(d); 9(c); 11(b); 11(d); 13; 14; 15(a); 15(b) and 15(c).

Insofar as the particulars were repeated as to the remaining causes of action, we find that items 'll(b), 11(d). 15(a), 15(b) and 15(c), when so repeated, were likewise insufficient.

The plaintiff was properly precluded from giving evidence on the trial only with respect to the allegations or matters contained in the plaintiff’s complaint in connection with the foregoing items.

The order dated May 16, 1945, and entered May 17, 1945, should be modified accordingly, and as so modified affirmed, without costs.

Martin, P. J., Dore and Callahan, JJ., concur; Townley and Glennon, JJ., dissent and vote to affirm.

Order dated May 16, 1945, and entered May 17, 1945, modified in accordance with opinion and as so modified affirmed, without costs. Settle order on notice. [See post, p. 840.]