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to in our system of practice really covers two reme dies, (1) the "copy of the account" sued upon which must be furnished as a matter of right (under the first sentences of section 531 of the Code of Civil Procedure, now Civil Practice Act, section 246), and (2) the particulars of a party's "claim" in actions other than upon an account, the direction to furnish which is discretionary with the court (under the last sentence of that section, now Civil Practice Act, section 247). See Badger v. Gilroy, 21 Misc. Rep. 466; People v. McClellan, 191 N. Y. 341; Board of Trustees v. Hurlburt, 161 N. Y. Supp. 436. The instant case falls within the latter category.

It seems to me that under the more liberal practice which it has been sought to introduce by the new Civil Practice Act and the accompanying rules, an appellate court should be slow to reverse the discretion of a judge below in respect to items in a bill of particulars unless that discretion has been abused. An abuse of discretion, however, does not occur merely because the lower court has come to a conclusion different from what might have been arrived at in the first instance by individual members of the appellate tribunal. If the alleged error appealed from involved a disregard of some positive fixed rule of law the error would be a mistake of law and not an abuse of discretion. The

distinction is often a nice one. "A proper balance between strict rule and magisterial discretion is one of the most difficult problems of the science of the law." Roscoe Pound, "Criminal Practice in the American City," The Survey, Oct. 29, 1921. In discussing a somewhat similar distinction in legislative powers, Prof. Wigmore has said of Justice Holmes: "He has ever been keenly conscious of the delicacy involved in reviewing other men's judgment not as to its wisdom but as to their right to entertain the

Misc.]

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reasonableness of its wisdom." 29 Harvard Law Review, 686.

Nevertheless, in many instances, and surely in the one at bar, the line is not difficult to draw. The question then remains, has the judge below abused his discretion? I take it that there has been no such abuse unless some substantial right of the unsuccessful party has been prejudiced or some remedy impeded or at least some serious inconvenience caused to him. It is clear in the instant case that by supplying the particulars directed in the order appealed from the plaintiff's rights and remedies will be in no way affected and that he will be subjected to none of those unfavorable features such as unnecessary disclosure of personal or business affairs which constitute an important consideration in matters of this kind. On the whole, therefore, I cannot see that any judicially cognizable wrong is predicable of the exercise of his discretion by the judge below. Nor do I think that the plaintiff need fear an order of preclusion in respect of the matters complained of. An order of preclusion need not, and should not, follow merely as matter of course, particularly not when the party ordered to furnish the bill has acted in good faith. "The court will not ordinarily, however, preclude a party from giving evidence if satisfied that the party has in good faith furnished such particulars as he could furnish in pursuance of the order." Smith, P. J., in Richards v. Miller, 167 App. Div. 443; Prym v. Peck & Mack Co., 136 id. 566; Smith v. Bradstreet Co., 134 id. 567.

While, therefore, it appears to me that some of the items granted below have little if any substantial value in connection with the "claim" of plaintiff or the ability of either side to develop its case on the trial, the age of the plaintiff may have some relation to the question of the extent of his injuries; and the

Appellate Term, First Department, January, 1922. [Vol. 117.

name of the person whom he claims to have been visiting may assist the defendant in ascertaining the lawfulness of plaintiff's presence on the premises. There appears to be little value or purpose in requiring the plaintiff to state the size of the piece of plaster which struck him, particularly as the complaint describes it as a large piece; but on the other hand, there can be no harm in requiring the plaintiff to state its dimensions approximately if he be able, and if not the order permits him to disclose his inability. The address of the plaintiff seems to be wholly immaterial to the function of a bill of particulars; it should properly be ascertained by a motion directed particularly to that end. Matter of Malcom, 129 App. Div. 226, and cases there cited. It would, however, be only a waste of time of court and counsel to require an additional motion to be made solely for so simple and harmless a purpose.

On the whole, therefore, although as intimated above, it is possible that had the matter been presented to me as an original application I might have declined to grant some or all of the items complained of, two of them seem to be quite appropriate to a bill, all are quite harmless to the plaintiff and none wholly immaterial to the issue. Under such circumstances I am of the opinion that due regard for the exercise of discretion by the judge below justifies an affirmance of the order, but without costs.

LYDON and McCook, JJ., concur.

Order affirmed, without costs to either party.

Misc.] Appellate Term, First Department, January, 1922.

STONEWARE ELECTRIC STOVE WORKS, Appellant, v. WILLIAM M. BARRETT, as President of the Adams Express Company, etc., Respondent.

(Supreme Court, Appellate Term, First Department, January, 1922.)

Municipal Court of the city of New York calendar practice failure to give notice of order transferring cause to day calendar as required by rule 33 of said court-motion to vacate voidable judgment under section 6(7) of the Municipal Court Code third party order in supplementary proceedings based on said judgment reversed Municipal Court Code, § 129 (2) does not apply.

After a case in the Municipal Court of the city of New York had been placed on the "reserved generally" calendar, a motion by plaintiff to restore it to the trial calendar was granted by an indorsement of the justice on the motion papers, but no formal order was entered and no notice of the so-called order was served on defendant's attorney. Thereafter, without defendant's knowledge, judgment was entered against him upon an inquest, and more than a year later a transcript of said judgment was filed in the office of the county clerk. A motion by defendant to set aside and vacate the judgment as void was denied, on the ground that, under section 129 (2) of the Municipal Court Code, it was made too late. After a motion by defendant for a stay had been denied for want of power, plaintiff obtained a third party order for the examination in supplementary proceedings of a bank. Upon reversing an order granting defendant's motion, made on an order to show cause why the third party order should not be vacated, held, that the case was improperly on the calendar of the Municipal Court.

Defendant not having been served with notice of the entry of the order or direction of the justice transferring the cause from the "reserved generally" calendar to the "day calendar" as required by rule 33 of the Municipal Court, the court should not have permitted the inquest or entered judgment as upon a default.

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The failure of plaintiff to submit proof of compliance with said rule 33 made the judgment entered voidable, and defendant's motion to vacate it should have been granted under section 6(7) of the Municipal Court Code.

Section 129 (2) of the Municipal Court Code, which relates only to the opening of defaults, did not apply, and the court below has ample power to grant a reargument of the motion to vacate the judgment or defendant, upon new papers showing what has transpired since the entry of said judgment, may renew the motion to vacate it.

APPEAL by plaintiff from an order made at Special Term of the City Court of the city of New York, vacating an order for the examination of a third party in supplementary proceedings instituted by the plaintiff against the defendant.

Kamen & Ostertag (Sol. S. Ostertag, of counsel), for appellant.

Stockton & Stockton (George M. Billings, of counsel), for respondent.

LYDON, J. The action was brought in the Municipal Court, issue joined, and the case placed on the "reserved generally" calendar. Later on, plaintiff's attorneys served a notice of motion on defendant's attorneys to restore the case to the trial calendar. No opposition was made by defendant and on default the motion was granted. No formal order was made or entered, but the justice indorsed on the motion papers, "Motion to restore is granted on default and the case is set for April 9, 1920, F. J. C., Jr." No notice of entry of this so-called order was served on defendant's attorneys. Thereafter without defendant's knowledge, an inquest was taken and a judgment entered. Nothing was done by plaintiff for over one year when, on April 20, 1921, a transcript of the judg