S. H. Pomeroy Co. v. Wells Bros. — 149 A.D. 673

Majority

p. 673

The S. H. Pomeroy Company, Appellant, v. Wells Brothers Company of New York, Respondent. The S. H. Pomeroy Company, Appellant, v. Wells Brothers Company of New York, Respondent.

First Department,

March 22, 1912.

Headnote

Pleading — bill of particulars—when bill sufficient — costs — amendment.

The plaintiff in an action to recover for the breach of the defendant’s contract to buy articles to he manufactured by the plaintiff for the construction of a building, claiming that he had partially executed the contract before the defendant repudiated it, should not be required to give a bill of particulars stating the number of men employed by him and who would probably have been employed in completing the contract.

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The plaintiff should not he charged with ten dollars costs as a condition requiring the defendant to accept his bill of particulars where the bill as originally served on the defendant’s demand was proper.

Where the bill of particulars served on demand was sufficient an order requiring the bill of particulars should not contain a clause precluding the plaintiff from introducing evidence of the particulars required by the order.

The plaintiff should not be charged with costs as a condition for an amendment of his complaint, if the cause of action is not changed and the amendment would have been allowed at trial if justified by the proof.

Appeal by the plaintiff, The S. H. Pomeroy 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 8th day of November, 1911. ■

Lewis R. Conklin, for the appellant.

Robert B. Knowles, for the respondent.

The plaintiff appeals (1) from an order requiring it to serve a bill of particulars, and (2) from an order requiring defendant, upon terms, to accept a bill of particulars and supplemental bill tendered by plaintiff, and precluding plaintiff from introducing any evidence and giving any testimony upon the trial of the action as to any facts not set forth in the bill of particulars, and also permitting plaintiff, upon terms, to amend its complaint by increasing the damages sued for.

The complaint alleges that defendant and plaintiff entered into an agreement whereby the latter was to manufacture and furnish certain articles to be used in the construction of a building; that after plaintiff had proceeded to execute the contract the defendant repudiated it'and refused to carry it out. The action is for damages for the refusal to permit plaintiff to complete the contract, and the amount of damages claimed is based upon the difference between the contract price and what it

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would have cost plaintiff to complete. The allegation is that plaintiff had spent $1,000 in fulfillment of the contract before defendant repudiated it, and that the whole cost to plaintiff of completing the contract would not have exceeded $11,000.

With the answer defendant demanded a bill of particulars. Plaintiff attempted to comply with this demand and served a bill and amended bill. Being dissatisfied with these, defendant returned them and moved for a bill of particulars, which motion resulted in the order first appealed from. Pending the appeal from that order plaintiff served an unusually complete bill of particulars, which the defendant returned as failing to comply with the order. Upon a motion that defendant be required to accept the bill of particulars, the second order appealed from was made.

The order for the bill of particulars required plaintiff to state, among other things, the number of men employed in performing the work costing one thousand dollars actually done under the contract, and the number of men that would have been employed if plaintiff had been permitted to complete the contract. This, we think, was more than defendant was entitled to, and plaintiff’s excuse for not complying with this part of the order which it incorporated into the bill of particulars seems to be entirely reasonable. The order for the bill of particulars must, therefore, be modified by striking out the requirement that the plaintiff state the number of men employed, and that probably would have been employed to complete the contract, and as so modified affirmed, with ten dollars costs and disbursements to appellant. With this provision stricken out of the first order the only colorable objection to the bill served by plaintiff is removed, and, consequently, the imposition upon plaintiff of ten dollars costs as a condition of requiring defendant to accept the bill must be stricken out. So, also, and for the same reason must the preclusion clause be stricken out, as well as for the further reason that it is too broad, and by its terms covers matters not related to the bill of particulars. The amendment of the complaint increasing the amount of damages claimed was not of a character justifying the imposition of costs as a condition. It did not change the cause of action in any way, and was an amendment which might have been

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allowed at the trial if the proof justified it. The second order appealed from must, therefore, be modified by striking out all terms imposed upon plaintiff and also the preclusion clause, and as modified is affirmed, with ten dollars costs and disbursements to appellant.

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

Orders modified as stated in opinion and as modified affirmed, with ten dollars costs and disbursements to appellant in each case. Orders to be settled' on notice.