Metropolitan Life Insurance v. Heinze

We think the court below was justified in requiring the defendants to serve the bill of particulars, as required by the order appealed from. It was, however, improper to insert in the order for the service of a bill of particulars a provision precluding the parties required to give the particulars from giving evidence in respect to a defense, as that question could only be presented after bill of particulars has been ordered, and defendants have failed to give the particulars required. If the defendants fail to furnish the particulars required, plaintiff may then move to preclude them from giving evidence as to the defense, for which they have failed to furnish such particulars.

The order appealed from is therefore modified by striking out the last paragraph, which precludes the defendants from giving evidence, and, as so modified, affirmed, without costs.