Fry v. Manhattan Trust Co. — 24 N.Y.S. 573

Majority

p. 573

(4 Misc. Rep. 611;

mem. report without opinion.)

FRY v. MANHATTAN TRUST CO. et al.

(Superior Court of New York City, General Term.

July 3, 1893.)

Headnote

Pleading—Bill of Particulars—When Required.

In an action by a promoter of financial and business companies against various persons and corporations on a special contract alleged to have been made by defendants to pay him a certain sum for various services rendered in bringing about the incorporation of a certain firm with a large capital, and associating defendants with the enterprise, out of which they realized large profits on the sale of stock, from which the sum claimed by plaintiff became payable, plaintiff will be required to give a bill of particulars showing whether any of the alleged agreements or requests for his services are in writing, and, if so, their date, tenor, and effect, and by whom signed; but he will not be required to give an itemized bill of the various services rendered by him, and how, when, and to whom rendered, or of the different requests made by defendants, or to specify by which of the defendants the requests were made.

Appeal from special term.

Action by Horace B. Fry against the Manhattan Trust Company, the United States Transfer & Exchange Association, Francis O. French, John I. Waterbury, John H. Davis, Jennings S. Cox, and Benjamin Gh Talbert, said Davis, Cox, and Talbert composing firm of John H. Davis & Co., on a contract for services rendered. From an order granting in part and overruling in part their motion for a bill of particulars, defendants appeal.

Affirmed.

For former report, see 22 N. Y. Supp. 386 .

The following is the opinion of McADAM, J., at special term:

The plaintiff, a promoter of financial and business companies, sues to recover $59,000 on a special contract to pay him that amount for various services rendered by him in bringing about the incorporation of the firm of John B. Stetson & Go., with an authorized capital of $2,700,000, and for as

p. 574

sociating the defendants with the enterprise, out of which they realized large profits upon the sale of the stock, from which profits the $59,000 became payable. In other words, the defendants became a sort of syndicate' to float the stock, and the moneys the members made were largely the result of the plaintiff's introduction, influence, and efforts. The defendants want an itemized bill of the various services rendered,—how, when, to whom;, of the different requests made by the defendants, and which of them; whether-oral or in writing, etc. The evident object of the bill is to limit the plaintiff’s proofs at the trial. The action being on a special contract to pay a specific sum for particular services rendered, the items would not seem to be necessary. Their performance required successive acts, all contributing' to a completion, and the plaintiff cannot be required to particularize each service so contributing. Johnson v. Mallory, 2 Rob. (N. Y.) 683; Betts v. Betts, 4 Abb. N. C. 324 ; Cady v. Potter, 55 Barb. 464 . A party should never be required to make specification of matters which from their inherent character are not capable of exactitude, or" which constitute evidence rather than substantiate facts. Another consideration is that the ordering of bills of particulars must be cautiously exercised, that the plaintiff may not be unreasonably embarrassed at the trial by being limited to the identical particulars stated. Many instances of this kind have occurred lately, wh: re the parties had to be remitted to special term for relief. It is proper, therefore, to raise the danger signal. The motion will be granted so far as to require the plaintiff to specify whether any of the agreements or requests are in writing, and, if so, their date, tenor, and effect, and by whom signed. This-is almost transcending the border line. In other respects the motion will be denied. No costs.

Argued before FREEDMAN, P. J., and GILDERSLEEVE, ,1.

Strong & Cadwalader, for appellants Manhattan Trust Co. and others.

Bartlett, Wilson & Hayden, for appellants Davis and others.

Leopold Wallach, for respondent.

The order appealed from is affirmed, with $10 costs and disbursements, on the opinion of the learned judge at special term.