p. 644Schwarzschild & Sulzberger Company, Respondent, v. The Empire State Surety Company, Appellant.Headnote
Pleading — bill of particulars — failure to perform building contract — surety entitled to particulars.A surety sued on a bond given to secure the performance of a building contract is entitled to a bill of particulars showing in what respects the principal failed to perform his contract as alleged.
Appeal by the defendant, The Empire State Surety Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 19th day of May, 1908, denying the defendant’s motion for a bill of particulars.
Ferdinand W. Buermeyer, for the- appellant.
Alexander Pfeiffer, for the respondent.
The plaintiff sues to recover upon a bond given by defendant to secure the performance of a building-contract. The complaint alleges the making of the contract; the failure of the contractor to carry it out, and perform the terms and" conditions thereof, and that plaintiff lias thereby sustained damage. The defendant asks to be informed, by a bill of particulars, in what respects the contractor failed to- carry out its contract, and what items go to make up the plaintiff’s damage. We think that the motion should have been granted. (Hopper v. Weber, 84 App. Div. 266 ; Kelly v. St,
p. 645Michael's Roman Catholic Church, 124 id. 505.) The defendant is not in the position of a plaintiff who alleges that he" has fully performed on his part, and seeks to ascertain what the defendant claims has not been performed. In such case a bill of particulars has been refused to a plaintiff because he knows what he agreed to do, and what he did, and must prove, as well as allege, full performance. The defendant surety is not to be presumed to know wherein his principal failed, or what damages resulted therefrom, and is entitled to be informed what plaintiff claims upon these points, in order properly to prepare for trial.
The order appealed from should be reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.
Present — Patterson, P. J., Ingraham, Laughlin, Clarke and Scott, JJ.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.