Ives v. Shaw — 31 How. Pr. 54

Majority

p. 54

SUPREME COURT.

John Ives and John McCredy agt. John Shaw.

Headnote

A party is not entitled to a bill of particulars upon demand in writing, under section 108 qf the Code, whore the claim of his adversary is for the violation of a. special contract, and the consequential trouble and expense resulting therefrom.

Watertown Special Term, November, 1865.

The complaint in this action contained throe counts; the first of which alleges the mating of a special contract by which the defendant agreed to receive, till and pack for the plaintiffs certain beef or barreling cattle on a day named “ that acting upon the Said agreement, and in order to have their cattle ready at the yards of the defendant in Deerfield, as he had directed, on that day, the plaintiffs were put to great necessary expense and trouble in breaking roads and driving said cattle, and in caring for them; that they had the said cattle to the number of 181 head ready for the said defendant to kill on the day appointed by him, but the defendant refused and neglected to receive, or kill and' pack them, and neglected and refused to perform" his said contract for ' the space of thirteen days, although often requested so to do; that by reason of such neglect and refusal, the plaintiffs were greatly damaged by being put to great expense and trouble in the care and feeding of said cattle, and by reason of the _ shrinkage thereof.”

The second count alleges another similar agreement subsequently made, together with' a similar breach, “ whereby the plaintiff suffered great damage in the trouble and expense of taking care of and feeding said cattle, and in the shrinkage thereof.”

The third count sets forth the items of an account, but gives no dates except the words “ all before the 24th day of November, 1862.”

The defendant having by his attorney, served a demand in writing of a copy of the items of tho plaintiffs’ demand (under section 158 of the Code), which has not been com

p. 55

plied with, now moves on due notice and a stay of proceed,ings pending the motion, for an order precluding tho plaintiffs from giving evidence on the trial of the several demands and damages set forth in their complaint.

Hammond, for the defendant,

Stephen K. Pratt, for the plaintiffs

The defendant was not entitled to a bill of particulars. The damages sought to be recovered under the first and second counts of tho complaint, are not matters of account within the meaning of the Code.. Nor is the defendant entitled to a bill under the third count, as that specifies particularly tho items sought to be recovered.

The motion is therefore denied, but without costs.. The plaintiffs to have twenty days further time in which to reply.