Majority
p. 5A. & S. HENRY & CO., Limited, v. TALCOTT. (Supreme Court, Appellate Division, First Department. March 17, 1899.)
Headnote
Bill op Particulars.Defendant, who, in an action for price of goods bought by him for resale, alleges, as a counterclaim, that the goods were not as warranted to him, and that, having resold a part of them on said warranty, some of them were rejected and returned to him, and he had to make allowances on others, because of the breach of warranty, should, in a bill of particulars, state the particular goods rejected and returned.
Appeal from special term, New York county.
Action by A. & S. Henry & Co., Limited, against James Talcott, for price of goods sold and delivered. Defendant counterclaimed, alleging that the goods were bought by him by sample, and on a warranty that they should be of the quality of the sample, and free from defects arising from manufacture, and fit for the purpose of resale, as merchantable articles of that quality; that they were not as warranted, but that he resold a part of them on the warranty, and some of them were rejected and returned to him, and he had to make allowances on others, because of the breach of warranty. From part of an order requiring defendant to serve a bill of certain matters he appeals, and from the part of the order denying plaintiff’s motion for a bill of particulars, except as specified in said order ( 56 N. Y. Supp. 684 ), it appeals.
Modified.
p. 6The order for bill of particulars is as follows: Argued before VAN BRUNT, P. J., and McLAUGHLIN, PATTERSON, O’BRIEN, and INGRAHAM, JJ.
“The plaintiff having moved for an order directing the defendant to serve a bill of particulars of the matters alleged in the counterclaim set up in the defendant’s amended answer, * * * it is ordered, that within twenty days after the service upon the defendant’s attorneys of a copy of this order, and written notice of the entry thereof, the defendant serve upon the plaintiff's attorneys a duly-verified bill of particulars, setting forth the following matters alleged in the counterclaim set up in defendant’s amended answer to the amended complaint, viz.: (1) The names of the persons to whom the defendant made allowances, as alleged in the first counterclaim, and the several amounts of such allowances, and the items, so far as they can be specified, of the damage, loss, and expense incurred in the resale of the rejected goods. (2) The names of the customers with whom the defendant made the time contracts, which, as alleged in the second counterclaim, he was unable to carry out by reason of plaintiff’s default, and the amount and kind of goods lie had agreed to sell to each, and the profits he claims to have lost by reason of his inability to carry out such contracts. Further ordered that, except as hereinbefore specified, the motion of plaintiff be, and it is, denied, without costs to either party.”
Harold Nathan, for plaintiff.
Frederic R. Kellogg, for defendant.
The order appealed from should be modified by adding to its first requirement the words: "And the specific goods, which were rejected and returned as alleged in said counterclaim.”
The order as modified is affirmed, without costs.