Plaintiff as assignee of an attorney instituted this action to recover from defendants the sum of $4,000 alleged to be due upon an “open, mutual and сurrent account”. On March 29, 1929, defendants caused to be served upon plaintiff a demand for a bill of particulars of the items of the acсount sued upon. Thereafter and on April 8, 1929, plaintiff having failed to serve or file a bill of particulars as demanded, defendants’ attorney cоmmunicated with one of plaintiff’s attorneys, and called his attention to the fact that more than five days had elapsed since the servicе of the demand for a bill of particulars and that no bill had been served, that the case was set for trial for May 31, 1929, and that he desired to take the deposition of plaintiff’s assignor. He also at this time informed plaintiff’s attorney that if the bill of particulars was not immediately served upon defеndants he would object to the introduction of any evidence pertaining to the account mentioned in plaintiff’s complaint.
Defendants on May 13, 1929, the plaintiff still having failed to comply with defendants’ demand for a bill of particulars, served upon plaintiff a notice that a motion to рreclude the plaintiff from giving evidence of the account would be made on the twentieth day of May, 1929. The court granted defendants’ motion uрon the day designated in the notice, and on the same day that defendants’ motion to preclude evidence was granted, plaintiff served аnd filed what purported to be a bill of particulars of the account. Thereafter plaintiff made a motion under section 473 of the Code of Civil Procedure, to be relieved from the order precluding evidence, and on June 6, 1929, this latter motion was denied by the court. The cause came on for trial on June 18, 1929, and the court acting under the order made May 20, 1929, precluding evidence, sustained *718 an objection to the evidence tendered by plaintiff in support of the allegation of his complaint. Judgment was thereafter entered for defendants. Plaintiff appeаls from the order precluding evidence, the order denying relief under section 473 of the Code of Civil Procedure and from the judgment entered in defеndants’ favor.
The first question upon this appeal is whether the trial court committed error in sustaining defendants’ motion to preclude evidencе. The failure on the part of plaintiff to comply with the demand for a bill of particulars, prior to the date upon which the motion to preclude evidence was heard and granted, is admitted, and in fact it appears. At the hearing had upon this motion, an affidavit of plaintiff’s assignor was filed in opposition to the motion, in which affidavit the assignor stated that defendants some years before the filing of the affidavit had been informed of the items of the account and were aware of their nature, but that the account covered a long period and because of its great detail required considerable time for preparation, which time assignor did not have because of other duties. The recоrd shows that plaintiff had had over fifty days since the service of the demand for the bill of particulars within which to prepare the bill of particulаrs, and that more than forty days before the motion was granted defendants’ attorney informed plaintiff’s attorney that if the bill was not furnished he would objeсt to the introduction of evidence of the account. That the procedure as adopted by defendants was justified under the circumstanсes is beyond question. Motions of this kind are addressed to the sound discretion of the trial court. The record fails to disclose that the trial court in granting this motion exercised other than a sound discretion.
(McCarthy
v.
Tecarte L. & W.
Co.,
The remaining question presented here invоlves the refusal of the trial court to vacate the order made precluding the introduction of evidence. Plaintiff duly made a mo
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tion under thе provisions of section 473 of the Code of Civil Procedure to be relieved from the order precluding evidence. This motion was denied by the сourt. On this motion the plaintiff again assumed the antagonistic position that the defendants were informed of the items, and that the account was old and long and there was no time within which to prepare it, and further stated that he believed that he could file the bill demanded at any time before trial if defendants’ rights were not jeopardized. It would also seem that at this hearing plaintiff contended, as he does here, that defendants werе not entitled to a bill of particulars. Plaintiff cites in support of this contention the case of
Auzerais
v.
Naglee,
The record here does not disclose that the trial court has abused this discretion nor that it has failed to exercise it in a sound and legal manner. The fact that this court might have reached, upon the same showing, an opposite conclusion, is not indicative of abuse of discretion upon the part of the trial court.
(Waybright
v.
Anderson, supra.)
It should be noted in this regard that the bill of particulars that was on file at the time this motion was heard was one, that by reason of its very general statement and lack of assignment of dates, would have failed to comply with the requirements of section 454 of the Code of Civil Procedure. It should also be pointed out that the question
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present here differs from that presentеd in many of the eases referred to by plaintiff in that in those eases the question of the excluding of evidence was presented for the first time аt the trial of the action, while here defendants made timely objection long before the time of trial. The fact that plaintiff made a mistakе as to the law in the matter of the bill of particulars of itself is no ground for relief under the circumstances here disclosed.
(Garroway
v.
Jennings,
The judgment is affirmed and the appeals from the two orders are dismissed.
Conrey, P. J., and York, J., concurred.