Mise.] ances. Appellate Term, First Department, January, 1922. The second action having been duly placed upon the commercial calendar and entitled to a preference may be promptly reached for trial, whereas the first action may not be tried for over a year. Held, that an order for the consolidation of both actions entered upon granting a motion by plaintiffs in the first action and directing that the second action be stricken from the calendar, will be reversed, the motion denied, and the case restored to the commercial calendar. APPEAL by defendant from an order of the City Court of the city of New York, consolidating a certain action brought by the defendant herein against the plaintiffs in said action with the above entitled action, and ordering that said action by defendant against the plaintiffs be stricken from the commercial calendar of said court. Abraham P. Wilkes, for appellant. Nathaniel H. Kramer (Ira J. Schuster, of counsel), for respondents. LYDON, J. The plaintiffs commenced an action in the City Court on August 5, 1921, to recover damages for breach of contract, alleging that defendant improperly manufactured certain shirts. Defendant duly answered admitting the agreement but denied the other allegations of the complaint. The answer contains no counterclaim of any kind. About a month after this action was commenced the defendant above named brought an independent action in the City Court against the plaintiffs for manufacture, sale and delivery of the shirts in ques tion. In this second action the plaintiffs herein interposed an answer denying most of the material allegations of the complaint and setting up two counterclaims. The first counterclaim is identical with the Appellate Term, First Department, January, 1922. [Vol. 117. cause of action set forth in the complaint in the first action, and the second counterclaim is for additional damages and allowances. The said second action was duly placed upon the commercial calendar of the City Court, under the rules of the said court, whereby it was entitled to a preference, being for labor, and goods sold and delivered. This second action would, therefore, be promptly reached for trial, whereas the first action for damages could not be reached for over a year. The plaintiffs herein brought on a motion in the City Court to consolidate the two actions, said motion was granted, and the order entered thereon directed that the second action be stricken from the commercial calendar. I think the order should not have been granted because the rights of both parties could have been determined promptly and completely in an earlier trial, which would have been had in the second action, whereas this order does nothing more than delay the determination of the rights of the parties for one year, and I think that the defendant herein has been deprived of a substantial right, in that he was denied a speedy trial. Miller v. Baillard, 124 App. Div. 555, 557. In these days of commercial uncertainty when business failures are in the ascendency, it behooves a party litigant to expeditiously reduce his claim to judgment, and the courts must assist litigants to get their respective claims determined as promptly as possible. Order reversed, with ten dollars costs, and motion denied with ten dollars costs, and the case restored to the commercial calendar. BIJUR and McCook, JJ., concur. Ordered accordingly. Misc.] Appellate Term, First Department, January, 1922. JACOB STEINLEGER, Appellant, v. HERBERT FRANKEL and FANNIE FRANKEL, Respondents. (Supreme Court, Appellate Term, First Department, January, Bill of particulars · 1922.) discretionary order under section 247 of Civil Practice Act. negligence action — plaintiff on premises at invitation of tenants injured by fall of plaster from ceiling in hallway. Where in an action to recover for injuries caused by the fall upon plaintiff of a large piece of plaster or other substance from the ceiling in one of the hallways of premises upon which, at the time, as alleged in the complaint, he was lawfully, at the invitation of one of the tenants of the premises, the granting of an order for a bill of particulars as to the age and residence of plaintiff, the name of the tenant whom plaintiff claims he was visiting at the time of the accident, and the size of the piece of plaster which plaintiff claims fell and struck him, is discretionary under section 247 of the Civil Practice Act. The order granted herein was not an abuse of discretion, and is affirmed, but without costs to either party. APPEAL by plaintiff from part of an order of the City Court of the city of New York granting defendants' motion for a bill of particulars. Kornbluth & Pollack (Herman C. Pollack, of counsel), for appellant. Phillips, Jaffe & Jaffe (Harold M. Phillips, of counsel), for respondents. BIJUR, J. The action is brought against parties in control of premises to recover damages for personal injuries alleged to have been suffered by plaintiff by reason of the falling of a "large piece of plaster or Appellate Term, First Department, January, 1922. [Vol. 117. other substance from the ceiling in one of the hallways thereof." It is alleged in the complaint that plaintiff was at the time of the accident lawfully on the premises" at the invitation of one of the tenants thereof." A motion for a bill of particulars embracing nineteen items was granted. Appellant complains only of the following items: (1) the age of the plaintiff; (2) the residence of the plaintiff; (4) the name of the tenant whom the plaintiff claims he was visiting at the time of the alleged accident; and (6) the size of the piece of plaster which the plaintiff claims fell and struck him. Appellant urges that it is "not the office of a bill of particulars to furnish the evidence but to amplify a pleading and to limit the proof," and that the items complained of are outside of its scope. He suggests also that since failure to comply warrants an order precluding proof of the particulars refused, plaintiff should be required to give particulars only of those facts which he must prove upon the trial. Plaintiff's contentions are in the main sound and might even be extended. The function of a bill of particulars has been defined to be "an amplification of the pleading" (Dwight v. Germania Life Ins. Co., 84 N. Y. 493, 506) and "to limit "generalities (Gee v. Chase Mfg. Co., 12 Hun, 630). Its purpose is also described in Slingerland v. Corwin, 105 App. Div. 310, 311, as" to amplify the pleadings and to indicate with more particularity than is ordinarily required in a formal plea the nature of the claim made, in order that surprise upon the trial may be avoided." The latter point is emphasized in the Dwight case at page 503, where the court says that the object of the bill is "to reach exact justice between the parties, by learning just what is the truth, and to learn what is the truth, by giving to each party all reasonable opportunity to produce his own proofs and to meet and sift those of Misc.] Appellate Term, First Department, January, 1922. 66 his adversary." It has also been said, "It is not the purpose of a bill of particulars to compel a party to furnish to his adversary the evidence upon which he relies." Smidt v. Bailey, 132 App. Div. 177. But since the bill is by the very words of the statute to set forth particulars of the claim" of either party, it must necessarily contain a statement of some facts. "Of course a bill of particulars may not be required for the purpose of disclosing the evidence or names of witnesses of an adversary, but it will be required for the purpose of giving definite information as to a claim or proposition contended for by an adversary with respect to any material fact at issue." Taylor v. Security Mutual Life Ins. Co., 73 App. Div. 319, 323. See, also, Bjork v. Post & McCord, 125 App. Div. 813. That a statement of facts is necessarily involved is further exemplified by those cases like Chittenden v. San Domingo Improvement Co., 132 App. Div. 169, and Hill v. Bloomingdale, 136 id. 651, which authorize an examination before trial even of adverse parties or witnesses solely in order to enable the other party to furnish certain of the "particulars." Since, therefore, the plaintiff is required to give particulars of his claim with respect to facts at issue, it follows that what he must give involves at least some reference to facts even though in the form of what we call a statement of ultimate rather than of evidentiary facts. In seeking, however, to distinguish between these two classes, between ultimate facts and evidentiary facts, we are met by that same question of degree which has been so often commented upon by Mr. Justice Holmes, and of which in a notable passage he writes, "It may be said that the difference is only one of degree: most differences are when nicely analyzed." Rideout v. Knox, 148 Mass. 368, 372. On the other hand, the bill of particulars referred |