Herrmann v. Empire Realty Corp. — 152 A.D. 822

Majority

p. 822

Aaron Herrmann, Appellant, v. Empire Realty Corporation, Respondent.

First Department,

October 25, 1912.

Headnote

Pleading — motion for further bill of particulars denied.

Where a real estate broker suing for.commissions has served a bill of particulars stating approximately the date of his employment and the surname of the defendant’s agent who employed him and has stated approximately the date of other transactions, he should not be required to serve a further bill of particulars stating the first name of the defendant’s agent and the exact dates of the various transactions where his affidavit shows that his memory for dates has been impaired by age and sickness so that he is unable to give the dates more definitely, and the bill of particulars served sufficiently advises the defendant of the facts upon which the plaintiff’s claim is based.

Appeal by the plaintiff, Aaron Herrmann, 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 27th day of May, 1912, granting the defendant’s motion for a further bill of particulars.

Irwin Untermyer of counsel [Guggenheimer, Untermyer & Marshall, attorneys], for the appellant.

Harold Nathan of counsel [Joseph Steiner with him on the brief], Leventritt, Cook & Nathan, attorneys, for the respondent.

The action is to recover a broker’s commission for having effected an exchange of property owned by the defendant corporation for certain property owned by Jacob W. Riglander and Sevilla Heineman. The answer is a general denial, except that it admits the exchange of the property.

Defendant served a demand for a bill of particulars, specifying: “1. When plaintiff was employed by defendant to effect the exchange of the properties mentioned in paragraph First of the complaint, specifying the day and place of. said alleged

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employment and the name of the officer, agent or representative of defendant by whom plaintiff claims to have been so employed; ” in response to which the plaintiff answered: “About March, 1910, at No. 907 Broadway, New York City, by Mr. Hess.” “2. When and where defendant £undertook and faithfully promised to pay the plaintiff ’ the commission of one per cent; ” to which the response was: “About March, 1910, at No. 907 Broadway, New York City.” “ When and where the exchange value of defendant’s premises for the purposes of said exchange £ was determined to be $1,500,000 ’ and by whom it was so determined, as alleged in paragraph Second of said complaint; ” “About May, 1910, at No. 49 Maiden Lane, New York City, by Mr. Hess.” “3. What officer, agent or representative of defendant, plaintiff claims to have introduced to Jacob W. Riglander and when and where such introduction took place;” to which plaintiff responded: “Mr. Hess; some time between April,' 1910, and November, 1910, at 49 Maiden Lane, New York City. ”

Defendant was not satisfied and made a motion for a bill of particulars. In answer thereto plaintiff served an affidavit in which he averred that he was seventy-four years of age, and, although his memory for facts and circumstances was still good, his recollection for dates had been impaired by age and sickness; referring to request No. 1, that he was unable to state more definitely than he had already done in the bill of particulars the precise date when the defendant engaged him or when the defendant promised to pay him the commission of one per centum and when the exchange value on defendant’s premises was determined. Referring to request No. 3, that he was unable to state more definitely than he had already the precise date when he introduced the agent or representative of the defendant to Jacob W. Riglander; “the name of the officer, agent or representative of the defendant was Mr. Hess, but I do not know and have no available means of informing myself of what his first name was, although I know that his address, as stated in the bill of particulars, is 907 Broadway, New York City.”

Notwithstanding the said affidavit, the court granted the motion requiring the plaintiff to give the full name of Hess and

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to specify with more particularity the date when it is alleged Mr. Hess was introduced to Mr'.. Riglander, and from said order plaintiff appeals.

It seems to us that upon these papers the defendant is sufficiently advised of the facts upon which the plaintiff bases his claim, and that it is unreasonable to require him to specify the first name of defendant’s agent, which is unknown to him, such alleged agent having been sufficiently identified for the information of the defendant.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Present — Ingraham, P. J., McLaughlin, Laughlin, Clarke and Scott, JJ.

Order reversed, with ten dollars costs, and disbursements, and motion denied, with ten dollars costs.