Aldrich v. Morningside Heights Housing Corp. , 2 Misc. 2d 60 ( 1956 )

Per Curiam.

Generally, the practice of not promptly complying with a demand for a bill of particulars or moving with respect thereto, if the demand is deemed improper, should be discouraged. The failure of plaintiffs to serve a bill of particulars within the time specified in the order of preclusion undoubtedly prejudiced the defendant under all the circumstances of this case. However, if plaintiffs were to proceed to trial with the order of preclusion outstanding, their offer of proof would be met by objection based thereon and a dismissal would not be on the merits but for failure of proof. Thus, plaintiffs could still commence a second action, a result not in keeping with the desire to avoid multiplicity of suits.

Subdivision 2 of rule 301 of the Rules of Civil Practice provides that an action shall not be discontinued by plaintiff except upon order of the court and upon such terms and conditions as the court deems proper. In view of plaintiffs’ dilatory tactics and laches the order appealed from should be reversed and plaintiffs be given leave to discontinue only upon payment of taxable costs in the Municipal Court plus the sum of $100 to cover defendant’s legal expenses.

The order should be affirmed, with $10 costs, unless appellants, within 10 days after service of copy of order entered hereon, pay taxable costs in the court below, plus $100 to cover defendant’s legal expenses. Upon compliance with condition, order should be reversed, without costs, and motion for leave to discontinue granted.

Eder, Hecht and Aurelio, JJ., concur.

Order affirmed, etc.