Virtue v. Beacham — 17 N.Y.S. 450

Majority

p. 450

Virtue et al. v. Beacham.

(City Court of New York, General Term.

December 17, 1891.)

Headnote

1. Pleading—Insufficient Bill of Particulars of Claim—Bemedt of Defendant.

Where plaintiffs, in response to defendant’s demand for a bill of particulars of his several causes of actions, omits particulars as to one, defendant’s remedy is to move for a further bill, and not for a dismissal of that cause of action.

3. Sale of Goods—Separable Orders.

Defendant ordered certain goods of plaintiffs, as follows: “Will you please ship me H. M. A. 100/1, * * *. And if you please you can send me at the same time 50/1, 3, 3, 4, 5, of Colonial. ” Held, that plaintiffs might ship and recover for the goods mentioned in the first, without shipping those mentioned in the second, sentence of the order; but that they could not ship and recover for those mentioned in the second, without also shipping those requested in the first, sentence.

Appeal from trial term.

Action by James S. Virtue & Co. against John Beacham to recover for goods sold and delivered. From a judgment for plaintiffs, defendant appeals.

Affirmed.

Argued before Van Wyok and Fitzsimons, JJ.

P. Q. EcTterson, for appellant. P. Tecumseh Sherman, for respondents.

J. At the opening of the trial, defendant moved to dismiss the first cause of action set forth in the complaint, on the ground that on demand plaintiffs had served a bill of particulars which left out everything referring to the first cause of action. This motion was denied, and properly so; for, if the bill of particulars served was insufficient, the defendant should nave moved for a further and additional bill. The defendant then demanded that plaintiffs elect as to which cause Of action they desired to go to trial on, and plaintiffs so elected the first cause of action, and withdrew entirely their second alleged cause. The plaintiffs had put in evidence this order from defendant to plaintiffs: “Will you please ship me H. M. A. 100/1, 75/2, 50/3, 4, 5, 50/6-7-8-9-10. And if you please you can send me at the same time 50/1, 2, 3, 4, 5, of Colonial.” The plaintiffs shipped to defendant the books called for by the first sentence of the above order, and sued for their value, but did not ship the books referred to in the second sentence of such order. The defendant contends that plaintiffs were compelled to ship all of the books referred to in said order, and that in default thereof they could not recover for those shipped. The two sentences of this order are so worded as to allow the plaintiffs to either ship the books called for by the first and recover for their value, or.to ship and recover for all the goods called for by both; but they would not be permitted to ship the goods mentioned in the second sentence and recover therefor without also shipping those called for by

p. 451

the first, for those mentioned in the second were to be shipped “at the same time” as those requested by the first. The evidence to sustain plaintiffs’ cause, although somewhat meager, is ample to justify the verdict in their favor, and the same should not be disturbed. Judgment affirmed, with costs.