Richmond v. Woolfolk — 22 N.Y.S. 1049

Majority

p. 1049

RICHMOND et al. v. WOOLFOLK.

(Superior Court of New York City, General Term.

January 3, 1893.)

Headnote

¡Pleading—Bill of Particulars.

In an action by brokers for commissions claimed to have been earned by procuring a satisfactory purchaser for bonds which defendant had employed plaintiffs to sell, plaintiffs will not be required to furnish a 'bill of particulars, specifying the name of the purchaser, and how and when plaintiffs notified defendant that a purchaser had been procured, as it would call for a disclosure of evidence which plaintiffs are entitled to retain until the trial.

Appeal from special term,

Action by Herbert Richmond and others against Joseph A. Wool-folk to recover brokers’ commissions. From an order denying a motion to require plaintiffs to furnish a bill of particulars, defendant appeals.

Affirmed.

The opinion of GrILDERSLEEVE, J., at special term, is as follows:

The plaintiffs are brokers, and this action is brought to recover commissions earned, as the plaintiffs claim, by procuring a satisfactory purchaser for the bonds the defendant had employed plaintiffs to sell. This motion is for a bill of particulars specifying the name of the purchaser, and how and when the plaintiffs notified the defendant that a purchaser had been procured. The defendant is not entitled to a bill of particulars in this case, as a matter of right. The court has the power to—and might, in its discretion—order the plaintiffs to furnish the bill of particulars the defendant seeks. The papers, however, fail to disclose a condition that warrants the court in exercising its discretion in favor of the defendant. The allegations of the complaint are ■clear, comprehensive, and, we believe, sufficiently specific. The defendant is fully informed of the matters which plaintiffs must establish in order to succeed on the trial. The allegations of the complaint seem to be such as are usually set up in actions of this class. Plaintiffs cannot succeed unless they -establish affirmatively that a purchaser was secured who was able, ready, and willing to purchase the bonds .within the time prescribed by the contract in respect thereto that was entered into between the plaintiffs and the defend

p. 1050

ant. Proof tending to establish these positions the defendant can meet without a bill of particulars of the character called for. It might be a great hardship to the plaintiffs to hold them down upon the trial to a bill of particulars, and work a grave injustice. The demand for a bill of particulars herein seems to call for a disclosure of evidence which plaintiffs are entitled to retain until the trial. The nature of plaintiffs’ claim'fully appears, and we are of opinion that it would not be proper to use the discretion of the court to require the plaintiffs to more fully advise the defendant of the proofs that will be offered upon the trial.

Argued before FREEDMAN and McADAM, JJ.

Sullivan & Cromwell, (Edward B. Hill, of counsel,) for appellant.

Henry C. Andrews, for respondents.

The order should be affirmed, with $10 costs and disbursements, on the opinion of the special term.