p. 88Appeal by the plaintiff, the Alleghany Iron 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 17th day of December, 1901, granting the defendant’s motion for a bill of particulars.
Henry B. Tworribly, for the appellant.
William jRumsey, for the respondent.
The action is brought to recover the damages sustained by the plaintiff in consequence of the breach of a contract alleged to have been entered into between the plaintiff and the defendant. The allegations of the complaint as to the making of the contract are quite indefinite. Such allegations are, that on and prior to the month of April, 1899, in the city and State of New York, the plain tiff entered into a contract with the defendant whereby the plaintiff agreed to purchase from the defendant, and. the defendant agreed to sell to the plaintiff, at certain prices, all the coke of first-class quality that would be required to operate the plaintiff’s furnaces at Iron Gate, up to the 31st day of December, 1899, being not less than ninety tons of coke per day. When this contract was made is not stated. Whether or not it was in writing is not stated. The officer or agent of the defendant who made the agreement and the prices to be paid by plaintiff are not specified. There is nothing but the bare allegation that prior to a day named, the plaintiff entered into a contract with the defendant. It is quite clear that this allegation is so indefinite that the defendant cannot properly answer; and in view of the allegations in the affidavit upon which this motion was made, that none of the executive officers of the defendant had any knowledge of such a contract, and that they have no record of one having been made, they certainly are entitled to the particulars of the contract, the name of the officers who made it, whether or not it was in writing, and the exact day when the contract was made. I also think the defendant is entitled to a statement of the demands made by the plaintiff upon the defendant to furnish the coke. The order appealed from, however,-requires that the plaintiff should furnish the particulars of the profits which it claims to have lost, and how such alleged profits were arrived at.
p. 89In view of the allegation of clause 7 of the complaint, it does not appear that this should have been required. From that allegation it is quite apparent what damages the plaintiff claims to have been sustained by reason of the failure of the defendant to furnish this coke to it. It is the difference between the cost price and selling price of the manufactured iron during the period from the first of April to the end of December. Whether or not the plaintiff could recover such damages is not the question. What the plaintiff claims is that it was entitled to recover the difference between the cost price and selling price of- the iron that it would have manufactured but for the failure of the defendant1 to deliver the coke, the complaint alleging that the plaintiff, during the whole period, was prevented from operating its furnace and lost the profits that would have been made thereby. There is no allegation that the plaintiff could not obtain coke from other persons and transport it over the defendant’s road to its furnace, or anything to excuse the plaintiff from endeavoring to reduce the damages as much as possible; but the basis upon which the plaintiff estimates its damage is clearly indicated in the complaint, and at this time there is no propriety in requiring the plaintiff to furnish further particulars of its claim. If it clearly appeared that the defendant would have the right to require such a bill of particulars as to profits after service of the answer, and if it was necessary to order a bill of particulars as to the other items, I should not be disposed to advise the modification of this order merely because these particulars would not be required prior to the answer; but from the allegations of the complaint and in the present condition of the pleadings, I do not see that there is anything to show that any further particulars of the plaintiff’s claim for damages would be at any time required. I think, therefore, that the order, so far as it requires the particulars of the plaintiff’s claim for damages, was not justified, and that the order appealed fromshould.be modified by striking out the provision requiring such particulars, and as modified affirmed, without costs.
Van Brunt, P. J., Patterson, Hatch and Laughlin, JJ., concurred.
Order modified as directed in opinion, and as modified affirmed, without costs.