Fruin-Bambrick Construction Co. v. Marks — 48 A.D. 51

Majority

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Fruin-Bambrick Construction Company, Appellant, v. William L. Marks, Respondent.

Headnote

Bill of particulars, as to the officer of a corporation employing the defendant, and as to the contracts on which profits were due to him.

Where, in an action upon a promissory note, brought by a corporation organized under the laws of the State of Missouri and authorized to do business in the State of New York, the defendant alleges as a counterclaim that the plaintiff employed him as its agent to obtain contracts for it in the city of New York under an agreement by which it was to pay him a sum equal to one-half the profits as compensation for his services, and that the defendant had obtained various contracts under this agreement, but had not been paid the full amount of his share of the profits, the plaintiff is entitled to a bill of particulars stating the name of the officer, agent or manager by whom he was employed, and also to a statement of the various contracts obtained by him, where the two officers of the plaintiff having sole charge of the business of the corporation in the State of New York deny all knowledge of the defendant’s employment or that he had ever secured contracts for the plaintiff.

The fact that the defendant, in the 1st paragraph of his answer, alleges that he was entitled to one-half of the profits “ on all paving contracts ” obtained in the city of New York, does not relieve him from the duty of specifying the contracts alleged to have been obtained by him, where it appears that, in the 2d paragraph of the answer, he claims to be entitled to one-half of the profits “ of various contracts,” which allegation the plaintiff may be called upon to meet.

Appeal by the plaintiff, the Fruin-Bambrick Construction 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 3d day of February, 1899, denying its motion for a bill of particulars of the counterclaim set forth in the defendant’s answer.

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Henry A. Powell, for the appellant.

E. W. Yard, for the respondent.

The action is on a promissory note for $1,000. The answer does not deny the allegations of the complaint, but sets up a counterclaim for $69,864.44, growing out of an alleged employment of the defendant by the plaintiff as an agent to obtain contracts in the city of New York, and an agreement to pay to the defendant for such services a sum equal to one-half of the profits. The defendant alleges that he obtained various contracts under this agreement, and that the profits amounted to $150,000 upon which, as compensation, $4,135.66 was paid, leaving the sum mentioned in the counterclaim due him.

Upon an affidavit and the pleadings, th'e plaintiff moved for a bill of particulars asking that the name of the officer or agent or manager who employed the defendant, and also a statement of the various contracts which the defendant had obtained, should be furnished. The defendant presented no affidavits or papers in opposition ; but upon the plaintiff’s own papers the motion was denied.

Considering the nature of the counterclaim, we think that the particulars asked for should have been furnished, provided the plaintiff’s moving papers were sufficient. It was shown by affidavit that the plaintiff was a foreign corporation organized under the laws of the State of Missouri, and that one Silas C. Martin, who made the affidavit, was authorized to act in the State of New York as secretary of the plaintiff; and that the business of the corporation in this State was under the management of and was conducted entirely by said Martin and one William H. Swift, who was the president of the company. Martin swears that he never knew anything of or ever heard of the appointment of the defendant as plaintiff’s agent, and that he had communicated with Swift, whose answer was that he was similarly ignorant; and that neither of them had ever known or heard of the defendant being employed by or having secured contracts for the plaintiff.

We think under the circumstances that plaintiff was entitled to know the name of the person who on its behalf constituted the defendant its agent as alleged, since otherwise, there being many

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officers of the corporation or persons who might have had the right to delegate such authority to the defendant, it would he manifestly unjust to compel the plaintiff to bring all such officers from the State of Missouri for the purpose of being ready to meet the defendant’s proof on the trial on the question of his employment by some one as the agent of the plaintiff. So too in regard to the other particulars, we think it would be in the interests of justice to require the defendant to state what contracts he claims to have obtained.

It is urged, as an objection, that the allegation is specific enough in that the defendant alleges he was entitled to one-lialf of the profits on all paving contracts obtained in the city of New York. Although this is the allegation in the 1st paragraph of the answer, it will be noticed that in the 2d paragraph the defendant says he was to have one-half the profits on various contracts. If his claim had been expressly limited in the answer to all paving contracts made in the city of New York, then no further particulars would have been necessary; but as there is some doubt and ambiguity as to just what he intends to claim which must be construed against the pleader, and as the claim in one paragraph is for all contracts while in another it is for various contracts, and as the plaintiff may be obliged to meet this latter allegation, it is entitled to know definitely the position which the defendant intends to assume at the trial. This does not require him in any sense to state his evidence, but merely the fact as to what various contracts he claims to have obtained, in the event of his not taking the position that he was entitled to one-half the profits on all paving contracts obtained by the plaintiff in the city of New York.

We think upon the affidavit and pleadings that the plaintiff was entitled to the particulars asked for, and that the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs to abide the event.

Van Brunt, P. J., Patterson and McLaughlin, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs to abide event.