Smith v. Molleson — 44 N.Y. St. Rep. 919

Majority

p. 919

James B. Smith, Resp’t, v. Phebe G. Molleson, App’lt.

(Supreme Court, General Term, First Department,

Filed March 31, 1892.)

Headnote

Bill or particulars—Indemnity.

Defendant executed a bond to plaintiff for the faithful performance of a contract entered into by a firm, or for the payment of such sums, not exceeding a specified amount, as plaintiff should suffer by reason of any failure of said firm to perform the contract on their part. In an action on the bond, Held, that the bond was one of indemnity only, and that defendant was entitled to a bill of the particulars in which said firm failed to perform the contract and of the damages caused to plaintiff thereby.

Appeal from an order denying defendant’s motion for a bill of ■particulars.

W. G. Beecher, for app’lt; J. F. MiUe>\ for resp’t

Section 531 of the Code provides that the court may in any case direct a bill of particulars of the claim of either party to be delivered to the adverse party. No question can, therefore, arise as to the power of the court to order a bill of particulars.

This brings us to the consideration of the question as to whether or not on the facts presented upon the motion it should have been •granted.

The action is brought to recover upon a bond given by the defendant to the plaintiffs for the purpose of guaranteeing the faithful performance of certain work by the firm of Pratt & Molleson, more particularly described in the complaint

The condition of the bond as therein set out is that if the said Pratt & Molleson should fully perform their said contract according to the terms thereof, or if the said bounden Phebe Gr. Molleson and the White & Gates Granite Co., or either of them, "* * * should well and truly pay or cause to be paid on demand such sum or sums of money, not exceeding $6,000 * * * .as he, the said James B. Smith, should suffer by reason of any failure by the said Pratt & Molleson to perform said contract on their part according to the terms thereof, thén the said bond should become null and void; else to remain in full force and virtue.

It will thus be seen that the bond sued upon is one of indemnity only, and was given for the purpose of saving harmless the plaintiff from any loss that might result by reason of the failure ■of the firm of Pratt & Molleson to fully perform their contract.

Until the plaintiff proves that he has been injured by reason of the failure of Pratt & Molleson to perform their contract, he is not ■entitled to recover.

As these facts which are essential to the plaintiff’s cause of .action must be proven, and as it is essential to enable defendant to fairly present his case on the trial that he should be apprised of the particulars in which Pratt & Molleson did not perform the •contract, and of the damage caused plaintiff by the failure to so

p. 920

perform, we are of the opinion, therefore, that the motion for a bill of particulars should have been granted.

The order should be reversed, with ten dollars costs and disbursements to abide the event, and the motion granted, with ten dollars costs to abide the event.

Yan Brunt, P. J., O’Brien and Ingraham, JJ., concur.