Richmond v. Woolfolk — 50 N.Y. St. Rep. 530

Majority

p. 530

Herbert Richmond et al., Resp'ts, v. Joseph W. Woolfolk, App'lt.

(New York Superior Court,

General Term,

Filed January 3, 1893.)

Headnote

Bbokbbs—Bill of pabticulabs.

In an action for brokers’ commissions alleged to have been earned fey procuring a satisfactory purchaser for fconds, of which fact they notified defendant, where the complaint is clear and comprehensive, a hill of particulars as to the name of such purchaser, and as to how and when such notice was given, will not he required.

p. 531

Appeal from order denying motion for a bill of particulars.

Action to recover for breach of contract to pay commissions for the sale of certain bonds.

The following is the opinion at special term :

GtILBersleeve, J.—The plaintiffs are brokers, and this action is brought to recover commissions earned, as the plaintiffs claim, by procuring a satisfactory purchaser for the bonds the defendant had employed plaintiffs to sell.

This motion is for a bill of particulars specifying the name of the purchaser, and how and when the plaintiffs notified the defendant that a purchaser had been procured.

The defendant is not entitled to a bill of particulars in this case-as a matter of right. The court has the power and might, in its discretion, to order the plaintiffs to furnish the bill of particulars the defendant seeks. The papers, however, fail to disclose a condition that warrants the court in exercising its discretion in favor of the defendant. The allegations of the complaint are clear, comprehensive, and, we believe, sufficiently specific. The defendant is fully informed of the matters which plaintiffs must establish in order to succeed on the trial. The allegations of the complaint seem to be such as are usually set up in actions of this class. Plaintiffs cannot succeed unless they establish affirmatively that a purchaser was secured who was able, ready and willing to purchase the bonds within the time prescribed by the contract in respect thereto that was entered into between the plaintiffs and the defendant.

Proof tending to establish these positions the defendant can meet without a bill of particulars of the character called for. It might be a great hardship to the plaintiffs to hold them down upon the trial to a bill of particulars, and work a grave injustice.

_ The demand for a bill of particulars herein seems to call for a disclosure of evidence which plaintiffs are entitled to retain until the trial. _ The nature of plaintiff’s claim fully appears, and we are of opinion that it would not be proper to use the discretion of the court to require the plaintiffs to more fully advise the defendant of the proofs that will be offered upon the trial.

Sullivan & Gromwell (.Edward B. Hill, of counsel), for app’lt;

Henry G. Andrews, for resp’ts.

The order should be affirmed, with ten dollars costs and disbursements, on the opinion of the special term.

Preedman and McAdam, JJ., concur.