Home Maker Co. v. Alley — 49 N.Y. St. Rep. 347

Majority

p. 347

The Home Maker Co. Resp’t, v. Charles K. Alley, App’lt.

(New York Common Pleas, General Term,

Filed December 5, 1892.)

Headnote

Bill op particulars—Breach op contract.

A complaint alleging that defendant neglected and refused to mail a specified number of plaintiff’s magazine, and wrongfully held and retained the mailing list and edition of the magazine, states hut a single and entire cause of action; there are no items of claim or damage, and the defendant is not entitled to a bill of particulars thereof.

Appeal from order denying motion for bill of particulars.

John C. Gulick, for app’lt; Joseph Fitch, for resp’t.

For cause of action the complaint alleges that defendant neglected and refused to mail the March number of plaintiff’s magazine to subscribers and advertisers, and wrongfully held and retained the mailing list and the edition of said magazine, to his damage $2,500. Defendant wants to know how much plaintiff was damaged: 1st By failure to mail to subscribers; 2d, by failure to mail to advertisers; 3d, by detention of the mailing list, and 4th, by detention of the edition. This information the learned judge at special term refused to require the plaintiff to furnish.

The order appealed from is correct beyond controversy.

Essentially a single act, the detention of the magazine, is alleged as the cause of action, and the claim is for damages resulting from that act. By the motion, the defendant requires of the plaintiff to resolve the damage ensuing from the tort into constitutive elements, and to propound them by a distinct classification; as in assault and battery, to state separately and specifically to what amount the plaintiff is injured in his eyes, in his nose and in his abdomen. The contention is preposterous. Plainly the attempt is to force a premature disclosure of plaintiff’s proof of damage; but this is never allowable. Passavant v. Cantor, 48 Hun, 546 ; 16 St. Rep., 252 ; Higenbotam v. Green, 25 Hun, 214 , 216 ; Ball v. Evening Post Co,, 38 id., 11. A bill of particulars of

p. 348

matters amounting to mere evidence of special damages is unauthorized. Dooley v. Royal Baking Powder Co., 1 Law Bulletin, 18. So, of a bill of particulars, in an action for libel, as to the injury to plaintiff’s good name and reputation in its business and credit. American M. F. Co. v. Eureka F. H. Co., 18 Abb. N. C., 70 . So, of a bill of particulars stating the damages sustained by each refusal of credit to plaintiff. Lane v. Williams, 37 Hun, 388 .

Indeed, the classification of plaintiff’s damages 'which the defendant submitted in his affidavit suggests that he is sufficiently informed as to those damages to escape all possibility of peril of surprise on the trial. Gee v. The Chase M. Co., 12 Hun, 630 ; Fink v. Jetter, 38 id., 163.

But defendant swears that he is ignorant of the items of plaintiff’s claim and damage, and truly; for there are no items of claim or damage ; the 'cause of action and the consequent damage both being single and entire.

The order is affirmed, with costs and disbursements.

Daly, Ch. J., and Bischoff, J., concur.