p. 505Thomas N. Rhinelander, as Trustee of the Estate of John V. Schaefer Company, Bankrupt, Appellant, v. Rudolph M. Haan, Respondent, Impleaded with Park Row Construction Company and Others.Headnote
Hill of pa/i'ticulars in an action for cabinet work done, where the complaint alleges an. account stated—the proofs of the cause of action should not be required.Where the complaint, in an action to foreclose a mechanic’s lien for work done- and materials furnished under a contract for cabinet work, alleges that an account was stated between the parties, and the defendant serves upon the-plaintiff a demand for a verified copy of the account in response to which the plaintiff serves an unverified copy of the account, the defendant is entitled to-a. bill of particulars specifying the various items of the work done and the materials furnished and the reasonable valúe thereof.
The order for the bill of particulars should not, however, require the plaintiff to furnish a statement of the evidence by which he intends to prove his cause of' action.
Appeal by the plaintiff; Thomas N. Rhinelander, as trustee of the estate of John V.* Schaefer Company, bankrupt, 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 óf New York on the-4th day of June, 1901, directing the plaintiff to serve a bill of particulars upon the attorneys for the defendant -Rudolph M. Haan.
Francis C. Huntington, for the appellant.
Wales F. Severance, for the respondent.
The action was brought by the plaintiff as trustee in bankruptcy,, under a certain contract for cabinet work in a restaurant in the city
p. 506of New York, for certain extra work done under said contract. There are allegations in the complaint as to a statement of accounts whereby it is alleged that there was an account stated between the bankrupt and the defendant showing an amount due the bankrupt, and also allegations to justify a recovery for the value of the work done and materials furnished, The plaintiff tiled a mechanic’s lien for the amount due, and the complaint asks for a foreclosure of the lien and that the interests of the defendants in the property be sold, and the amount due be paid to the plaintiff as such trustee. The answer denies the statement of the.accounts, denies that- the amount claimed was due to the plaintiff, and sets up a counterclaim for-which the answer demands judgment. The defendants served a notice upon the plaintiff demanding a verified copy of the account referred to in the complaint. A copy of the account ivas furnished, and subsequently the defendants moved for a bill of particulars which was ordered, and from an order entered granting that,motion this appeal is taken.
We think that the defendants were entitled to a bill of particulars of the plaintiff’s demand, setting forth the items of the demand. The copy of thé account that was furnished was not verified as a bill of particulars, and does not purport to be a bill of particulars of the demand upon which the plaintiff’s cause of action for the reasonable value of the work done and materials furnished was based. The order that was granted, however, was much, too broad, requiring not-only the particulars, but a statement of the evidence by which the plaintiff would prove his cause of .action. What the 'defendant was entitled to was a specific statement of the various items of the work done for which the plaintiff sought to recover, and this he was entitled to have stated in a bill of particulars so that the claim of the plaintiff should be restricted to the items specified.. The account that appears in the record, verified and served as a bill of particulars, would seem to be sufficient except as to the items for extra work in kitchen up to November 29, -1899, and the items for extra work to December 18, 1899. As to,said items the "particulars should be furnished.
The order should be modified so as to require the plaintiff to-serve a-bill of particulars specifying the work done'"and- materials furnished by the John Y. Schaefer Company for the defendants
p. 507and the reasonable value thereof as above specified, and as so modified affirmed, without costs.
Van Brunt, P. J., Q’Brien, McLaughlin and Hatch, JJ., concurred.
Order modified as directed in opinion, and as modified affirmed, Without costs. '