Italian Cook Oil Corp. v. Alderson

| N.Y. App. Div. | Jun 14, 1948

In an action to recover damages for fraud, defendants appeal from so much of an order as grants plaintiff’s motion to strike the first and second separate and complete defenses from their answer; grants plaintiff’s motion to vacate their notice of examination before trial; and grants in part plaintiff’s motion to modify their demand for a bill of particulars. Order modified on the law by striking therefrom the provision modifying item 4 of defendants’ demand for a bill of particulars; and by adding to the last ordering paragraph, which directs the service of a bill of particulars by plaintiff, a provision granting item 4 in its entirety. As thus modified, the order, insofar as appealed from, is affirmed, without costs. The hill of particulars is to he served within ten days from the entry of the order hereon. The matters alleged in defendants’ separate defenses were provable under their general denial. The defenses were, therefore, properly stricken from the answer; and defendants were not entitled to an examination before trial based thereon. Item 4 of the demand for a bill of particulars should have been allowed without modification. Lewis, P. J., Carswell, Johnston, Adel and Wenzel, JJ., concur.