Berry v. Johnstone — 154 N.Y.S. 1112

Majority

p. 1112

BERRY et al. v. JOHNSTONE et al.

(No. 7621.)

(Supreme Court, Appellate Division, First Department

July 9, 1915.)

Headnote

Appeal from Special Term, New York County. Action by James P. Berry and others against William W. Johnstone and others. From an order denying defendants’ motion for a bill of particulars, unless defendants consent to an inspection and discovery, in which event the motion was granted, and denying plaintiffs’ motion for an inspection and discovery, all parties appeal. Affirmed on plaintiffs’ appeal, reversed on defendants’ appeal, and defendants’ motion granted in part. George C. Delacy, of New York City, for plaintiffs. Franklin Taylor, of New York City (Joseph J. Zeiger, of New York City, on the brief), for defendants.

In so far as plaintiffs appeal from the order in question, it is affirmed. In so far as defendants appeal therefrom, it will be reversed, and their motion granted to the extent of requiring plaintiffs to serve within 20 days a bill of particulars as follows: (1) A detailed statement of each and every instance where the alleged inferior butter brought less upon resale-b^ the plaintiffs than the prevailing market price of the make specified in the contract, including each date, number of tubs, number of pounds, price received, place of sale, name, and address of purchaser, and market price which should have been received had it been the make specified in the contract. Also, the date on which the butter was received by the plaintiffs from the defendants, and the storage lot number thereof. (2) A detailed statement of each and every instance where the alleged inferior butter brought, upon resale by the plaintiffs, from two to five cents per pound less than the plaintiffs paid for the same, including each date, number of tubs, number of pounds, place of sale, name and address of the purchaser, price received, and price originally paid. Also, the date on which the butter was received by the plaintiffs from the defendants, and the storage lot number thereof. (3) A detailed statement of such of the alleged inferior butter as was still on hand in the possession of the plaintiffs at the.time the complaint was verified. Also, each and every sale since then, together with the date and place of the same, the price received, and the name and address of the purchaser. Also, the date on which the butter was received by the plaintiffs from the defendants, and the storage lot number thereof. (4) A detailed statement of each and every instance when, the alleged inferior butter being in turn resold by the plaintiffs, the purchasers, because of its inferior quality, refused , to accept and receive it, so that the plaintiffs were compelled to dispose of it at a great loss; stating specifically the date and place of each resale, the name and address of each purchaser, the date of each refusal, rejection or return, the date, place, and manner of each subsequent disposition, the name and address of the person to whom it was thus disposed of, and the price received thereon. ' Also, the date on which the butter was received by the plaintiffs from the defendants, and the storage lot number thereof. (5) A detailed statement of each and every sum of money for storage and other charges on the alleged inferior butter, and of the interest on each and every sum of money borrowed to purchase the same, stating specifically the date, place, and amount of each sum of money thus expended. Ten dollars costs and disbursements of the appeal are awarded to the defendants against the plaintiffs. All concur.