Royle v. Goodwin — 98 A.D. 95

Majority

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Selena Fetter Royle, Respondent, v. Nathaniel C. Goodwin, Appellant.

Headnote

Bill of particulars—in an action for a failure to produce a play the names of those led thereby to believe that the play was not a success and the damages resulting therefrom should be given.

The complaint in an action alleged that the defendant, an actor, had contracted to produce a certain play owned by the plaintiff during the entire theatrical season of 1903-1904, and to pay the plaintiff certain royalties, and that, after producing it for four weeks during such season, he discontinued the production thereof, to the plaintiff’s damage in the sum of §10,000.

The complaint also alleged, by way of special damages, that by the breach of the contract the public had been led to believe that the play was not a dramatic success and was not calculated to amuse and edify the public, and also that the theatrical managers throughout the United States and Canada, and in other foreign countries, had been thereby led to believe that the play was not a paying theatrical attraction, and had been prevented from entering into contracts with the plaintiff for the production of the play, all of which special damages were alleged to amount to §10,000.

Held, that the defendant was entitled to a bill of particulars stating the names and addresses of any members of the public at large who had been led to believe that the play described in the amended complaint was not a dramatic success, and was not calculated to amuse and edify the public by reason of the breach of the contract by the defendant; also stating the names and addresses of the theatrical managers throughout the United States and Canada, and in other foreign countries, who had been led to believe that said play was not a paying theatrical attraction, and had been prevented from entering into contracts with the plaintiff for the production of said play by reason of said breach of said contract; and also stating the amount of damages which the plaintiff claimed to have suffered by reason of the foregoing facts.

Appeal by the defendant, Nathaniel 0. Goodwin, 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 12th day of September, 1904, denying the defendant’s motion for a bill of particulars.

The amended complaint in the action alleged that the plaintiff was the owner of a play entitled “ My Wife’s Husbands,” and that she entered into a contract with the defendant, an actor, by which the latter agreed to produce said play throughout the entire theatrical season of 1903-1904, and to pay the plaintiff certain royalties

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for the privilege; that, after producing the play for a period of four weeks, the defendant discontinued the production of said play to the plaintiff’s damage in the sum of $10,000.

She also alleged, as special damages, that, by reason of the discontinuance of the play, the public at large had been led to believe that such play was not a dramatic success and was not calculated to amuse and edify the public, and also that the theatrical managers throughout the United States and Canada and in other foreign countries had, by the defendant’s breach of the contract, been led to believe that the play was not a paying theatrical production and had thereby been prevented from entering into contracts with the plaintiff for the production of the play. All of said special damages were alleged to have resulted in damage to the plaintiff in the sum of $10,000.

Archibald Foote Clark, for the appellant.

William, R. Wilder, for the respondent.

The defendant was entitled to have a bill of particulars of the special damage claimed to have been sustained by the plaintiff. H. was entitled to know at what cities and in what theatres, and when, the play “ My Wife’s Husbands ” had been successfully produced before the public.

He was also entitled to know the names and addresses of any members of the public at large who have been led to believe that the play described in the amended complaint was not a dramatic success, ánd was not calculated to amuse and edify the public by reason of the breach of the contract by the defendant.

He was also entitled to know the names and addresses of the theatrical managers throughout the United States and Canada, and in other foreign countries, who have been led to believe that said play is not a paying theatrical attraction, and have been prevented from entering into contracts with the plaintiff for the production of said play by reason of said breach of said contract.

He was also entitled to know what damages the plaintiff claims to have sustained by reason of the foregoing.

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The order should be modified in accordance with these suggestions, and as modified affirmed, without costs.

Present—Van Brunt, P. J., Patterson, O’Brien, Hatch and Laughlin, JJ.

Order modified as suggested in opinion, and as so modified affirmed, without costs.