McLaughlin v. Kelly — 22 Abb. N. Cas. 286

Majority

p. 286

McLAUGHLIN v. KELLY.

N. Y. Supreme Court, First District, Special Term and Chambers ;

January, 1889.

Headnote

1. Bill of particulars in action for literary services.] In an action for services as a literary .writer and clerk of defendant’s testator, in which the complaint charged a gross sum for services for a specified period of years, at so much per year, not by special agreement, apparently, but on quantum mei'uit, grouping together the services as the writing oUletters of private, business and political character,' and the preparation of newspaper articles, resolutions, ‘ addresses, and the material of a lecture on a subject named,— held, that the defendant was entitled, whether plaintiff sued for salary as such or for the value of specified services, to a statement of the number of letters, articles, resolutions and addresses, with dates and details as near as might be, and the dates and distinct services rendered in the preparation of the lecture. The plaintiff should also make similar specifications for alleged services in subsequent years, which are the subjects of separate items in the complaint. In such case, plaintiff is not to be required by bill qf particulars to furnish copies of the productions ; for the disclosure of such evidence cannot be required on this motion.

■2. The same ; time to move.] The taking of a deposition by consent is not the beginning of a trial within the rule limiting the time to move for a bill of particulars. -

p. 287

Motion for a bill of particulars.

The action was brought by James F. McLaughlin against the executrix of John Kelly to recover for literary services alleged to have been rendered to the defendant’s testator.

After the service of the complaint, and before answer, the plaintiff, upon the defendant’s request, furnished the •defendant with a bill of particulars.

After issue joined, the plaintiff obtained an order for the examination of a witness de bene esse¡ and after that •examination was completed the defendant moved for a further bill of particulars.

Frederick Smyth, for the defendant and the motion.

Peter B. Olney, for the plaintiff, opposed.

I have examined very carefully all the papers submitted on this motion, and have concluded that the defendant should have a more specific and detailed bill of particulars than that which was furnished in July last. The action is brought to recover the value of services of the plaintiff as a literary writer and clerk of the defendant’s testator, and the "first item charged is a gross sum of five thousand dollars, being for five years services at a thousand dollars a year, not by special agreement, apparently, but on •a quantum meruit. These services are grouped together as consisting of the writing of letters of a private, business and political character, and the preparation of newspaper articles and resolutions and addresses on political subjects, and the preparation of the material of a lecture on “Duelling.” All this is so general, with the exception of the last subject referred to, that it is impossible for the defendant to apprehend what she will be called upon to meet at the trial, and I think she is entitled to more specific information as to the nature of this whole item, and whether or not the plaintiff

p. 288

simply sues as far as this item is concerned for salary as-such, or whether he claims the value of each specific kind of services aggregating the sum named, he should give a statement of the number of letters and newspaper articles,, resolutions and addresses written by him, and the dates and details as near as may be, and also the dates and distinct services rendered in the preparation of the lecture referred to. But, further than this, nothing should be required as to-the first item. As to the second item, it seems to cover-services of the general character mentioned for a year, and, apparently, is for salary, without claiming the particular value of each act of service, and all that it is necessary testate in the further bill is the number of letters and newspaper articles written by the plaintiff during that year for the defendant’s testator. And, with reference to the third-item, a statement should be given in connection with the bill of particulars about the number of letters, newspaper-articles and addresses, and the dates of the preparation of the addresses and newspaper articles, as near as may be; and the same information must be given respecting the other-items where charges are made for services in the preparation . of newspaper articles and addresses.

But the plaintiff will not be required to furnish copies of these literary productions at this time. The production of this evidence cannot be required on such a motion as this.

The defendant is not too late in making this motion'. The taking of a deposition by consent cannot be regarded a the beginning of a trial.