Strawberry Hill Press, Inc. v. Laddie Boy Dog Foods, Inc.

In an action to recover damages for breach of contract, and for other relief, wherein the answer asserts a defense and counterclaim based on breach of warranty, the appeal is from an order (1) denying appellant’s motion to strike the case from the calendar on the grounds that respondent has not served a bill of particulars and that appellant has not had an ample opportunity to complete the examination of respondent before trial, and (2) granting respondent’s motion to vacate appellant’s demand for a bill of particulars and notice of examination. Order reversed, with $10 costs and disbursements, appellant’s motion granted, and respondent’s motion denied. In our opinion, the learned Special Term improvidently exercised its discretion in denying appellant’s motion and granting respondent’s motion. Wenzel, Acting P. J., Beldock, Murphy, Hallinan and Kleinfeld, JJ., concur.