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Tisdale Lumber Co. v. Droge

131 N.Y.S. 683 Court N.Y. App. Div. Decision date 1911-11-10 English

Delivered by RICH, J.

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TISDALE LUMBER CO. v. DROGE et al.
(Supreme Court, Appellate Division, Second Department.
November 10, 1911.)

Headnote

1. Discovery (§ 40*)—Examination of Adversary—Facts Material to Issues.
Plaintiff’s assignor furnished lumber to E. and R., who were under contract to build a house for defendant, and filed a mechanic’s lien therefor. Plaintiff also acquired by. assignment the claim of E. and R. against defendant for work and material. E. and R. having failed to complete the house, defendant finished it, ■ as permitted by the contract. Plaintiff alleged two causes of action, one for money judgment for the claims of E. and R., another for foreclosure of the lien, alleging -defendant’s completion of the contract was at a small expense, which defendant denied. Held, that such completion and the cost were affirmative parts of plaintiff’s action, and he was entitled to examine defendant before trial.
[Ed. Note.—For other cases, see Discovery, Dec. Dig, § 40.[2] ]
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2. Discovery (§ 32*)—Examination of Adversary—Application—Imposition on Terms.
Where the motion for examination of adversary before trial complies with Code Civ. Proc. § 872, and Gen. Rules Prac. 82, the court may not impose additional requirements.
[Ed. Note.—Eor other cases, see Discovery, Dec. Dig. § 32.[2] ] .
3. Discovery (§ 44*)—Examination of Adversary Before Trial.
That movant for examination of adversary before trial can subpoena him as a witness, or that he wijl stipulate to be present at trial, is not ground for refusing the motion.
[Ed. Note.—Eor other cases, see Discovery, Cent. Dig. §§ 57, 58; Dec-Dig. § 44.*]
4. Mechanics’ Liens (§ 254*) — Set-Off —Completion of Building by Owner.
Where a materialman sought to enforce his lien, and also asserted a claim assigned to him by the contractors and builders, and defendant had completed the building on failure of the builders, defendant was not necessarily entitled to an allowance of all he actually expended in the completion, but only to such sum as was necessarily expended in completing the building according to the contract.
[Ed. Note.—For other cases, see Mechanics’ Liens, Cent. Dig. §§ 447-448; Dec. Dig. § 254.*]
5. Discovery (§ 32*)—Examination of Adversary—Waiver—“Bill of Particulars.”
As facts admitted in a pleading do not deprive the other party of his right to examination before hearing of the party making the admissions, and as a “bill of particulars” is an extension of the complaint or answer, and is a part of the pleading, a party asking for a bill of particulars does not lose his right to examine his adversary before trial.
[Ed. Note.-—Eor other cases, see Discovery, Dec. Dig. § 32.*
For other definitions, see Words and Phrases, vol. 1, pp. 795-797; vol. 8, p. 7599.]
Appeal from Special Term, Queens” County.
Proceedings by the Tisdale Lumber Company against Harman G. Droge and others. From an order vacating an order requiring defendant Droge to submit to an examination, plaintiff appeals. Reversed.
Argued before JENICS, P. J., and BURR, CARR, WOODWARD, and RICH, Jj.
Easton S. Bacon, for appellant.
George A. Gregg, for respondents.

The defendants Etherington and Ross entered into a contract with the defendant Droge for the erection of a dwelling house. Plaintiff’s assignor, Tisdale, furnished lumber to the contractors, which was used in the building, and has filed a mechanic’s lien for the unpaid balance of the purchase price. Pie also sued Etherington and Ross at law for this lumber, and obtained a money judgment. Tisdale later assigned both the lien and judgment to the plaintiff, who also acquired by assignment the claim of Etherington and Ross against Droge for material and labor. Etherington and Ross failed to complete the building within the time limited by their con

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tract, and Droge thereupon terminated the same, and completed the house at their expense, pursuant to the provisions of the contract. Two causes of action are alleged in the complaint, the first for a money judgment. upon the claim of Etherington and Ross, and the second for the foreclosure of the mechanic’s lien. Substantial performance of the contract is alleged. It is also alleged that the defendant Droge completed the contract at an expense of not to exceed $100. Both of these allegations are denied by the defendant Droge, who alleges an actual expenditure in the completing and finishing of the building of $1,105.79. It is as to the cost of the completion that the plaintiff seeks an examination of the defendant Droge before trial.

[1, 2] The completion of the building by Droge on account of the ■contractors Etherington and Ross, and the cost thereof, must be shown as a part of the plaintiff’s affirmative case. Martin v. Flahive, 112 App. Div. 347 , 98 N. Y. Supp. 577 . A party is entitled to a full examination of his adversary before trial, upon facts which are material to the issues (McKeand v. Locke, 115 App. Div. 174 , 10 N. Y. Supp. 704 ; Donaldson v. Brooklyn Heights R. R. Co., 119 App. Div. 513 , 104 N. Y Supp. 178 ); and where, as in this case, the moving papers comply with the requirements of section 872 of the Code of Civil Procedure and with rule 82 of the General Rules of Practice, the court must not insist upon additional requirements (Shonts v. Thomas, 116 App. Div. 854 , 102 N. Y. Supp. 324 ).

[3, 4] The fact that the applicant can subpoena the witness, or that he will'stipulate to be present at the trial and be sworn as a witness in his own behalf, or that the evidence sought can be obtained through other persons, is no answer to the application. Goldmark v. U. S. Electro-Galvanizing Co., 111 App. Div. 526 , 97 N. Y. Supp. 1078 . The plaintiff must prove the cost of completion of the building, and it is important that it should be informed as to just what Droge did in that respect, and what portion of material used and labor procured by him is properly chargeable to the contract. Although Droge may have expended in completing the building the full amount claimed, it does not follow that all of that sum is a legal charge against his contractors. He is only entitled to the benefit of such sum as was necessarily expended in completing the building in accordance with the requirements of the contract and specifications therefor, and the plaintiff should be given the opportunity of learning from Droge, who alone possesses such information, each item of labor and materials, with the amount expended therefor.

[5] The plaintiff is not deprived of this right by his demand for the bill of particulars served in this action, as it is limited to the statement of the gross amounts said to have been paid workmen or contractors, for repairing defects, and in the purchase of material. It does not aid the plaintiff in determining the question of necessary cost involved in the action. A bill of particulars is an extension of the complaint or answer, and necessarily part of the pleadings, and in the late case of Curran v. Oppenheimer, 143 App. Div. 271 , 128 N. Y. Supp. 9 , it was held that the plaintiff was entitled to an examination of the defendant, although the latter had made admissions and state

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ments in his answer of the facts as to which an examination was sought.

The order vacating the order for the examination, before trial must be reversed, with $10 costs and disbursements, and the motion to vacate denied, with $10 costs. All concur.

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