Taylor v. Metropolitan Fireproof Storage Warehouse Co.

Majority

p. 321

Frances N. Taylor, Respondent, v. Metropolitan Fireproof Storage Warehouse Company, Appellant.

First Department,

October 21, 1910.

Headnote

Pleading — bill of particulars — nature of agreement not to sell property received for storage.

A warehouse company sued for the conversion of goods received for storage, which the plaintiff states in a bill of particulars were sold in violation of the defendant’s agreement not to sell, .is entitled to a further bill of particulars stating the nature and character of the agreement, when and where made, whether oral or in writing, and the names of the persons present.

Appeal by the defendant, the Metropolitan Fireproof Storage Warehouse 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 6tli day of June, 1910, denying the defendant’s motion for a further bill of particulars.

p. 322

Leopold B. Pollak, for the appellant.

Edward Kellogg Baird, for the respondent.

Defendant is engaged in the storage warehouse business, and the action is to recover damages alleged to have been sustained by the plaintiff by reason of the conversion of certain goods stored with it. The answer is to the effect that the goods alleged to have been converted were sold for non-payment of storage charges after all of the provisions of the statutes relating to the subject had been complied with. After issue had been joined, upon defendant’s motion, an order was made directing plaintiff to serve upon it a bill of particulars which should set forth the manner in which the plaintiff claimed that the defendant converted the property referred to, and also the theory upon which the plaintiff proposed to establish conversion. In response to this order plaintiff served a bill of particulars, in which the conversion was stated to consist in a sale of the property “in violation of defendant’s agreement with plaintiff not to sell said property, and in violation of the provisions of law pertaining to liens on personal property.” A motion was then made for a further bill of particulars which should set forth, among other things, the nature and character of the agreement, when and where made, whether oral or in writing, and the name or names of the persons present. The motion was denied, and the appeal is from that order.

I think the motion should have been granted to the extent of requiring her to give this information. If the plaintiff had an agreement with the defendant that it would not sell the property referred to, then there is no reason why she should not furnish it with the information bearing on that subject.

The order appealed from is, therefore, reversed, with ten dollars costs and disbursements, and the motion granted to the extent of requiring the plaintiff to furnish a bill of particulars which shall set forth the facts called for in that part of the notice of motion designated “ I.”

Ingraham, P. J., Laughlin, Clarke and Scott, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted to the extent stated in opinion.