Brauer v. Oceanic Steam Navigation Co. — 49 N.Y.S. 937

Majority

p. 937

BRAUER v. OCEANIC STEAM NAVIGATION CO., Limited.

(Supreme Court, Appellate Division, First Department.

February 25, 1898.)

Headnote

1. Bill of Particulars—-When Required— Breach of Contract.

In an action to recover damages resulting from the refusal by a common carrier to carry out its agreement to lease all tbe cattle space of its steamships to plaintiff for a year, resulting in an alleged loss of profits that plaintiff would have realized, held, that plaintiff should not he required to furnish a bill of particulars of the items of such prospective profits,

ü. Same—Nonresident Plaintiff.

It appeared that plaintiff resided in England, and that it would take 20 days to communicate with him. Reid, that an order requiring the service of a bill of particulars within 20 days did not make an appropriate allowance of time.

8. Pleading—Verification.

The complaint was not verified. Held, that plaintiff should not be required to verify the bill of particulars. Code Civ. Proc. § 531.

Appeal from special term.

Action by William W. Brauer against the Oceanic Steam Navigation Company, Limited. From an order granting a bill of particulars, plaintiff appeals.

Modified.

The complaint was unverified. It alleged that defendant agreed to let to plaintiff the cattle space in seven steamships, to carry cattle to Liverpool, from December 1, 1897, to November 30, 1898; that this freight space would have accommodated 52,000 head of cattle; that, relying on the agreement, plaintiff had made arrangements to purchase cattle for such shipment; that defendant refused to carry out the contract, and plaintiff was unable to procure space in other steamships; and that plaintiff would have realized large profits on said 52,000 head of cattle if the contract had been carried out. The plaintiff resided

p. 938

in England, and the undisputed allegations of the papers used in opposing the motion showed that it would take 20 days to comnmnicate with him. The order required the service of a bill of particulars within 20 days.

Argued before VAN BRUNT, P. J., and BARRETT, RUMSEY, McLAUGHLIN, and O’BRIEN, JJ.

Ira D. Warren, for appellant.

E. P. Wheeler, for respondent.

We think that it was entirely proper to order a bill of particulars as to the items mentioned in the first and second paragraphs, of the order, hut it seems to us that the items of profit which the plaintiff claims he could have realized on the cattle mentioned in the complaint should not have been required to be stated in the bill of particulars. No sufficient time was given to the plaintiff in which to furnish such bill of particulars, and he should not have been required to furnish a verified bill.

The order should therefore be modified by directing the service of an unverified bill of particulars within 20 days after notice of the entry of the order upon this appeal, and by striking from the order entered at special term the third paragraph thereof. As so modified, the order should be affirmed, without costs to either party.