Fry v. Manhattan Trust Co.

Headnote

Bill of particulars—Special contract.

In an action upon a special contract to pay a specific sum for services-rendered in bringing about a particular result, the plaintiff should not be required to furnish a bill of particulars further than to specify whether any of the agreements or requests made were in writing, and if so their tenor, date and effect and by whom signed; he cannot be required to-particularize each service contributing to the result.

Appeal from an order denying in part defendants’ motion for a bill of particulars.

The following is the opinion of the special term :

McAdam, J. The plaintiff, a promoter of financial and business companies, sues to recover $59,000, on a special contract to pay him that amount for various services rendered by him in bringing about the incorporation of the firm of John B. Stetson & Co., with an authorized capital of $2,700,000, and for associating the-defendants with the enterprise, out of which they realized large-profits upon the sale of the stock, from which profits the $59,000* became payable. In other words, the defendants became a sort of syndicate to float the stock, and the moneys the members made were largely the result of the plaintiff’s introduction, influence and efforts. The defendants want an itemized bill of the various-services rendered, how, when, to whom; of the different requests made by the defendants, and which of them; whether oral or in writing, etc. The evident object of the bill is to limit the plaintiff’s proofs at the trial. The action being on a special contract to pay a specific sum for particular services rendered, the items-would not seem to be necessary. Their performance required successive acts, all contributing to a completion, and the plaintiff cannot be required to particularize each service so contributing. 2' Robt., 683; 4 Abb. N. C., 324 ; 55 Barb., 464 . A party should never be required to make specification of matters which from their inherent character are not capable of exactitude, or which constitute evidence rather than substantiate facts. Another consideration is, that the ordering of bills of particulars must be cautiously exercised, that the plaintiff may not be unreasonably embarrassed at the trial by being limited to the identical particulars stated. Many instances of this kind have occurred lately, where the parties had to be remitted to special term for relief. It is proper, therefore, to raise the danger signal. The motion- will be granted so far as to require the plaintiff to specify whether any of the agréments or requests are in writing, and if so their date, tenor and effect, and by whom signed. This is almost

transcending the border line. In other respects the motion will be denied. Bo costs.