Gormly v. Smith — 165 A.D. 169

Majority

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Clarence W. Gormly, Appellant, v. John Thomas Smith and Mark M. Salomon, Respondents.

First Department,

December 18, 1914.

Headnote

Pleading—sufficiency of bill of particulars by attorneys in action on quantum meruit for professional service.

Attorneys in an action to recover on a quantum meruit for professional services may be required in a bill of particulars to state separately the value of the services claimed to have been rendered with reference to each separate action or matter in its entirety; but the value of each item of service need not be stated.

An itemized statement in a bill of particulars of the services rendered is sufficient, without requiring the plaintiff to specify the particular days on which the services were rendered or the time occupied each day.

Appeal by the plaintiff, Clarence W. Gormly, from an order of the Supreme Court, made at the New York Special

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Term and entered in the office of the clerk of the county of New York on the 26th day of October, 1914, requiring him to furnish a bill of particulars.

Wilbert Ward [Rutherford B. Meyer with him on the brief], for the appellant.

Frank A. Gaynor, for the respondent John Thomas Smith.

The plaintiff and defendants are attorneys and counselors at law, and the action is to recover on a quantum, meruit for professional services alleged to have been rendered by plaintiff to defendants at their special instance and request between the 1st day of January, 1913, and the twenty-sixth day of November of the same year. The answers put in issue all the material allegations of the complaint, with the exception of the averment that the parties are attorneys.

The order made on application of defendant Smith requires that a bill of particulars be served with respect to seven matters specified in seven paragraphs, designated (a) to (g), inclusive. Under the well-settled practice the first five provisions were clearly authorized. The sixth, designated paragraph “ (f),” requires a statement of the days on which the services were rendered and the specification of the “exact nature of the services rendered on each day,” and- the time devoted thereto; and the seventh, designated paragraph “ (g),” requires a statement of “The value of each item of service ” for which a recovery is sought. The preceding paragraphs of the order require an itemized statement of the services rendered. That should suffice on that particular point, for it necessarily requires a definite statement with respect to the services, which embraces the nature and extent thereof. There is no occasion for requiring the plaintiff to specify the particular days on which the services were rendered, or the time occupied each day. The other requirements that the defendant be furnished with a statement of the services claimed to have been rendered, if complied with, will give all the information essential to enable the defendant to defend the action, and if those requirements be not fully complied with the defendant has a remedy by

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further motion. The well-settled practice requires that such a statement be sufficiently comprehensive and definite to enable an adverse party to obtain advice and to offer opinion evidence thereon with respect to the value of the services. In such a case the value of each item of service need not be stated. The rule is, that the party should state separately the value of the. services claimed to have been rendered with reference to each separate action or matter in its entirety. (Pace v. Amend, 164 App. Div. 206 ; Aub v. Hoffmann, 120 id. 50.)

The order should, therefore, be modified by striking out paragraphs “ (f) ” and “ (g),” and inserting in place thereof the following: “(f) Separately the value of the services with respect to each separate matter,” and as modified affirmed, without costs.

Clarke, McLaughlin, Scott and Hotchkiss, JJ.,concurred.

Order modified as directed in opinion and as modified affirmed, without costs. Order to be settled on notice.

Cases cited

Pace v. Amend 164 App. Div. 206 N.Y. App. Div. 1914-11-06 p. 171