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. Present — Ingraham, P. J., Laughlin, Scott, Dowling and Hotchkiss, JJ. Order modified as directed in opinion, and as modified affirmed, without costs. Order to be settled on notice.
See Code Civ. Proe. § 531.—[Rep.