Stein v. American Alliance Insurance , 280 A.D. 838 ( 1952 )

Action to recover the value of certain articles of jewelry and furs, alleged to have been stolen from plaintiff’s residence and automobile. The articles were insured against such losses by two policies of insurance issued by defendant. Defendant’s answer contains affirmative defenses alleging tbat the plaintiff made false statements in examinations under oath and in proofs of losses. Defendant appeals from an order granting in part and denying in part plaintiff’s motion to vacate defendant’s notice of examination before trial and its demand for a biff of particulars. Order, insofar as appealed from, modified by deleting from the first ordering paragraph the figure “ 9 ” and by adding that figure to the second ordering paragraph after the figure “6”; and by striking from said order the third and fourth ordering paragraphs and substituting in lieu thereof a provision that plaintiff’s motion to vacate defendant’s notice of examination before trial is denied. As so modified, the order is affirmed, with $10 costs and disbursements to appellant. The bill of particulars is to be served within ten days after the entry of the order hereon; examination to proceed on five days’ notice. Item 9 of the demand for the bill of particulars applies to all the property stolen; item 6 thereof applies only to the property stolen from the automobile. The motion to vacate should not have been granted as to item 9. The pleadings raise issues which entitle the defendant to examine plaintiff before trial. The motion to vacate the notice of examination should have been denied. Carswell, Acting P. J., Adel, Wenzel, MaeCrate and Schmidt, JJ., concur.