Gigliotti v. Morasco , 2 A.D.2d 653 ( 1956 )

Order affirmed, with $50 costs and disbursements to appellant against the respondent. Memorandum: We assume that the plight of the plaintiff arising out of failure of her attorney to comply with rule 115 of the Rules of Civil Practice was considered by the Special Term in the exercise of its discretion to vacate the preclusion order and permit the service of a bill of particulars. Failure to comply with the rule invariably jeopardizes the rights of the litigant and may result in the loss of such rights. Counsel who persist in such practice may sooner or later be called upon to answer for their conduct in disciplinary proceedings. Fortunately, in this instance no serious harm appears to have resulted to the defendant. There is every indication that the Special Term gave serious consideration to the matter and we feel constrained to sustain its discretion and affirm the order. All concur except Vaughan J., who dissents and votes for reversal and denial of the motion. (Appeal from an order of Oneida. Special Term vacating an order of preclusion and permitting plaintiff to serve a bill of particulars.) Present — McCurn, P. J., Vaughan, Kimball, Williams and Bastow, JJ.