There are two branches to this case, the defendants appearing by different attorneys. Each attorney moved separately for a bill of particulars. One bill of particulars was ordered upon the motion of Frank DeK. Huyler and repeated only the facts alleged in the complaint: First. The first appeal is from an order compelling the plaintiff to give further particulars, or, in lieu thereof, to serve upon the attorneys for the defendant Frank DeK. Huyler, a verified statement that he is unable to supply said particulars or so much thereof as he is unable to supply. This order was, I think, proper and should be affirmed. The bill of particulars was upon its face insufficient as it simply repeated the allegations of the complaint without any. affidavit that plaintiff could not give further particulars; nor is such an affidavit furnished in response to the motion for a further bill of particulars. The first order should be affirmed.
Second. The attorney for Coulter D. Huyler also demanded a bill of particulars and the same bill of particulars was served upon him as was served upon Frank DeK. Huyler. This the attorney for Coulter D. Huyler refused to accept and the second appeal is from an order denying the plaintiff’s motion to compel him to accept the same. The attorney for Coulter D. Huyler was I think fully justified in refusing to accept the bill of particulars. It gave no other particulars than were stated in the complaint and stated no reason why a further bill could not be given. This was in defiance of the court’s order and was clearly improper. In an affidavit, however, upon which this motion is made, the plaintiff swears that he is unable to give further particulars. In view of this affidavit, it would be useless to order a further bill of particulars and the motion should have been granted to compel the *539attorney for Coulter D. Huyler to accept the bill of particulars tendered, but without costs, as at the time the bill of particulars was rejected the plaintiff had not made affidavit that he could not furnish a more explicit bill of particulars than that given.
Third. The third order is an order of preclusion made at the instance of Coulter D. Huyler upon the ground that no sufficient bill of particulars has been served. This order depends upon our determination of the second appeal herein, and inasmuch as we have reversed the order therein appealed from and have directed the attorney for Coulter D. Huyler to accept the bill of particulars tendered, it would follow that the order of preclusion should be reversed and the motion denied, without costs.
Clarke, P. J., Latjghlin, Dowling and Shearn, JJ., concurred.
In the first case: Order affirmed, with ten dollars costs and disbursements.
In the second case: Order reversed and motion granted, without costs.
In the third case: Order reversed and motion denied, without costs.