Post Express Printing Co. v. Adams — 24 Abb. N. Cas. 246

Majority

p. 246

POST EXPRESS PRINTING CO. v. ADAMS.^[1]

N. Y. Supreme Court, Fifth Department, General Term;

December, 1889.

Headnote

1. Bill of particulars ; special damages.] In an action against the-members of a labor union to recover damages for “boycotting” plaintiff’s newspaper, the complaint alleged that the defendants caused other persons to solicit and threaten plaintiff’s customers to»

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discontinue their relations with it, causing loss of customers and patronage.—Held, that defendants were entitled to a bill of particulars of the names and addresses of the “other persons” so induced to solicit and threaten plaintiff’s customers, of the names and addresses of the customers solicited and induced to discontinue relations with plaintiff, and of the particulars of plaintiff’s alleged damages by loss of patronage, with names and addresses, etc.

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2. The same.] Whether the defendants are entitled in such case to a bill of particulars of plaintiff’s damages, depends upon whether or not the allegation of the complaint in that respect is to be regarded as-setting up a claim for special damages. If so regarded, plaintiff must give a bill of particulars of such loss.

3. The same; examination of defendants.] Whether plaintiffs shall have an examination of defendants to aid in framing the bill, must be determined on a motion for that relief.

Appeal by defendants from an order denying their motion for a bill of particulars.

D. C. Feehj, for defendants and appellants.

I. The power of the court to order a bill of particulars in an action for tort cannot now be questioned (Tilton v. Beecher, 59 N. Y. 176 ; Dwight v. Germania Life Ins. Co., 84 Id. 493 ; Smith v. Johnston, 22 State Rep. 593; Liscomb v. Pearsall, 21 Id. 303, 305 ; Cunningham v. M. S. etc. R. R. Co., 20 Id. 698 ; Rice v. Rockefeller, 19 Id. 162).

II. Defendants are entitled to the names of the persons induced to circulate the documents complained of (Ball v. Evening Post, 38 Hun, 15 ).

III. And the names of the persons solicited (Russell v. Giblin, 8 State Rep. 336).

Satterlee.dk Yeomcm, for plaintiff and respondent.

I. The granting of the motion is discretionary (Witkowski v. Paramore, 93 N. Y. 467 ; Powers v. Hughes, 39 Super. Ct. 482).

II. The motion should be denied because defendants have knowledge of the facts (Powers v. Hughes, 39 Super. Ct. 482; Blackie v. Neilson, 6 Bosw. 681 ; Stevens v. Webb, 4 Civ. Pro. R. 64).

III. The matters sought are simply evidence of plaintiff’s claim (Ball v. Evening Post, 38 Hun, 11 ; Gee v. Chase M’f’g Co., 12 Hum,, 630 ; Higenbotham v. Green, 25 Id. 214).

IV. The motion should be denied because plaintiff will

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by it be precluded from proving damages, except those of which it has already obtained knowledge.

Y. If a bill of particulars is ordered, plaintiff should be permitted to examine defendants for the purpose of furnishing it (Ball v. Evening Post Pub. Co., 15 State Rep. 492).

The action is for damages resulting from an alleged “ boycott ” of the plaintiff’s business. The complaint charges that the defendants and several other persons, acting together and calling themselves, “ The Central Labor Union,” did agree to place the plaintiff under a boycott, and in pursuance of such agreement did circulate and cause to be circulated, among the inhabitants of the city of Rochester, a great number of printed circulars, of which a copy is set out in the complaint, which, among other things, •cautioned or advised the friends of street car drivers not to buy The Post Express / that they, also, in pursuance of such agreement, sent and caused to be sent to the patrons of the plaintiff, who were advertising in its newspaper (The Post Express), another printed circular, of which a copy is set •out in tlie complaint, requesting such patrons to discontinue advertising through the columns of that paper; that they •did, also, in pursuance of such agreement, orally solicit and cause others to solicit the business patrons of the plaintiff •and subscribers of its paper, to discontinue business relations with the plaintiff, under the threat of pecuniary loss to such patrons and subscribers, if they failed to comply with such request; that all such acts were done with the malicious intent to injure the plaintiff, and “ that the plaintiff has, in consequence of the premises, lost patronage and been greatly damagedand plaintiff asks judgment for :$10,000.

The defendants moved for a bill of particulars of the plaintiff’s claim, asking that the plaintiff be required to specify, in substance, as follows:

1. The names and addresses of those other persons than ■the defendants, whom it is alleged, they caused to solicit

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and threaten the plaintiff’s patrons and subscribers, as stated above.

2. The names and addresses of its business patrons and subscribers, whom, it is alleged, the defendants solicited, or caused others to solicit, to discontinue relations with the plaintiff, under threats of pecuniary loss, etc.

3. The particulars of the plaintiff’s alleged damages by loss of patronage, whether arising from the withdrawal or withholding of advertisements or from decrease of circulation, giving the names and addresses of persons or firms-who withdrew or withheld their advertisements, and of those who discontinued their subscriptions in consequence-of the alleged wrongful acts of the defendants.

The motion was denied at Special Term, and from that order this appeal was taken.

We think the demand for particulars was a reasonable one, and ought to have been granted.

1. If the plaintiff, or its officers, know, of their own knowledge, or are informed, as they state and verify in their complaint, that business patrons of the plaintiff have been personally solicited and threatened by the defendants in the manner charged, they must be supposed to know who those patrons are, and it is a reasonable demand of the defendants to be informed of the names of persons whom the allegation is intended to embrace.

It is to be observed that no demand is made for particulars of the publication or circulation of the first circular mentioned, nor of the persons to whom the second circular was sent, but only of the business patrons of the plaintiff orally and personally solicited and threatened by the defendants and others employed by them. If the plaintiff’s officers know of such persons, who have been thus approached, they can probably give their names; if they do not know of them it is difficult to account for the verified allegations of the complaint in that respect.'

2. Counsel for the respondent here object that the order asked for would require the plaintiff to give the names óf

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all the persons associated with the defendants in the “ Central Labor Union ; ” such a requirement, it will be seen, is not embraced in the motion. The “ others ” whom the plaintiff is asked to name, are those only whom it is alleged the defendant caused to solicit and threaten patrons of the plaintiff to its injury. The act, in this respect, charged upon the defendants in the general allegation of the complaint, is described as that of causing other persons to do-unlawful acts to the injury of the plaintiff. It is certainly not unreasonable that the plaintiff should inform the defendants who the persons are whom it is intended to allege they have caused to do the wrong complained of (Childs v. Tuttle, 48 Hun, 228 ).

3. Whether the defendants are entitled to a bill of particulars of the plaintiff’s damages depends upon whether or not the plaintiff’s allegation in that respect is to be regarded as setting up a claim for special damages. If the plaintiff proposes to claim special damages, that is, loss- of patronage in particular instances, either in advertising or in its subscription list, it must, of course, give a bill of particulars of such loss. If the intention was only to allege general damages, as where, in actions of slander or libel, injury is alleged to reputation and to feelings, then no more particular specification of the injury is required. In other words, if the plaintiff intends to give evidence of particular instances of loss occasioned by the wrongful acts of the defendants, those instances must be specified by a bill of particulars, the alternative being that the plaintiff will not be permitted to give evidence of any such particular instances which have not been so specified.

The allegations of this complaint are extremely general, and give but little information to the defendants to guide or assist them in preparing to meet the evidence to be made in support of the plaintiff’s claim. To give such information is the proper office of a bill of particulars. We think the case is one which fairly calls for the interposition of the court to limit and define the scope of the charges which the

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defendants are called upon to meet, which it has ample power to do under § 531 of the Code of Civil Procedure (Cunard v. Francklyn, 111 N. Y. 511 ).

Whether the plaintiff (as suggested by its counsel) shall have the benefit of an examination of the defendants, or either of them, to aid in framing its bill of particulars, must be determined on a motion by the plaintiff for that relief.

The order appealed from should be reversed, and the motion granted for a bill of particulars of the three allegations enumerated above. Neither party should have costs of the motion, but the appellants should have $10 costs and the disbursements of this appeal. '

Barker, P. J., concurred.

Cases cited

Tilton v. Beecher 59 N. Y. 176 N.Y. 1874-12-07 p. 248
Witkowski v. Paramore 93 N. Y. 467 N.Y. 1883-10-09 p. 248
Blackie v. Neilson 6 Bosw. 681 N.Y. Super. Ct. 1860-07-05 p. 248
Cunard v. Francklyn 111 N. Y. 511 N.Y. 1888-12-04 p. 252