King v. Craddock , 252 A.D. 719 ( 1937 )

Order reversed, with ten doUars costs and disbursements, and motion granted unless defendants Craddock serve a biU of particulars in accordance with the demand within ten days of the date of the service of the order, with ten doHars costs. Memorandum: One of the objects of a bill of particulars is to ascertain facts — not as they actuaUy exist, but as the party from whom the biU is sought wiH claim them to be when eaUed upon to prove his cause of action. (Havholm v. Whale Creek Iron Works, 159 App. Div. 578, 582; American Condiments Co. v. Audit Co. of N. Y., 164 id. 927, 928.) As plaintiff now seeks particulars as to allegations in answers to an amended complaint served by the plaintiff after the trial of issues framed by former pleadings herein, there is no assurance that the claim by the defendants Craddock in support of their last pleadings is the same as when the former trial took place. We, therefore, conclude that the plaintiff is entitled to an order of preclusion under rule 115 of the Rules of Civil Practice unless within the time fixed by our order the defendants Craddock shall serve a biU of particulars in response to plaintiff’s demand therefor, dated June 11, 1937. All concur. (The order denies a motion to preclude the giving of testimony in an action to set aside the transfer of stock.) Present —■ Sears, P. J., Edgcomb, Crosby, Lewis and Cunningham, JJ.