Action for a divorce. The 5th paragraph of the complaint alleges that the defendant committed adultery about the month of July, 1907, at a certain hotel in Coney Island, which allegation was put in issue by the answer. Thereafter, upon motion, the issues were framed and sent to a jury for trial on January 25, 1909. In the order framing issues, from which no appeal has been taken, there was inserted the name of the hotel where the offense is alleged to *808have been committed. After the issues had been framed, and a few days before the day fixed for trial, the defendant moved for a bill of particulars of the “ day and time ” when the offense charged was alleged to have been committed. The motion was denied and defendant appeals.
A bill of particulars is an extension of the pleading in relation to which it is ordered. (Raff v. Koster, Bial & Co., 38 App. Div. 336.) Its purpose is to limit the proof of the party furnishing it to the particular facts stated. Had the defendant moved for a bill of particulars before the order had been made settling the issues and directing a trial of the same I am of the opinion he would have been entitled to the information asked. Having waited, however, until after issues had been framed and a trial thereof directed on a day specified he was not entitled to the order. The bill of particulars, if the same were furnished, might and probably would modify the order settling the issues, and that order cannot be modified or qualified' except by motion for that purpose or by an appeal from it.
The order appealed from, therefore, is affirmed, with ten dollars costs and disbursements.
Pattekson, P. J., and Lattghlin, J., concurred; Ingbaham and Scott, JJ., dissented.