Bainbridge v. Friedlander — 58 N.Y. St. Rep. 22

Majority

p. 22

Thomas S. Bainbridge, Resp’t, v. Albert Friedlander el al., App’lts.

(New York City Court, General Term,

Filed February 8, 1894.)

Headnote

Bill of particulars—Contract.

In an action on contract, where the answer specifically denies plaintiff’s alleged performance, defendant should not be required to fusnish a bill of particulars of the times and manner of such non-performance.

Appeal by defendants from order requiring them to furnish bill of particulars of non-performance by plaintiff of the contract he sues upon.

Spiegelberg <& Wise, for app’lts; F. A. Burnham, for resp’t.

The plaintiff’s alleged cause is for service rendered by him under a special agreement as salesman for defendants, and his complaint alleges: “ That plaintiff has duly performed (all the terms and conditions of said agreement upon his part to be done and performed,” while the defendants by answer, plead: “ The defendants deny that the plaintiff duly performed all the terms and conditions of said agreement upon his part to be done and performed, but, on the contrary, allege that plaintiff did not perform all the terms and conditions of said agreement, and neglected, failed and refused to discharge his duties as traveling salesman for these defendants.” This plea of defendants is nothing more than a specific denial of plaintiff’s allegation of performance by him, and if so much of defendants’ plea as follows the word “ performed ” was stricken out, still plaintiff would be forced to make proof of his allegation of performance. Considering defendants’ plea, therefore, with reference to its legal effect, which is simply that of denial, it cannot be properly regarded as setting up any such claim as to render it proper to require a bill of particulars. See Goddard, v. Pardee Medicine Co., 52 Hun, 85 ; 22 St. Rep. 540 , which was followed and duly approved by this court in Strébell v. The J. E. Furber Co., 51 St. Rep. 163 , and the case of Rafalshy v. Boehm, 20 N. Y. Supp. 374 ; 48 St. Rep. 641 , does not in any way conflict with either of these decisions, for in the Rafalshy case the answer did not, by general or specific denial, put at issue plaintiff’s alleged performance, and in the opinion in that case, it is suggested that defendant’s plea was insufficient and frivolous, but as it was not so assailed, and plaintiff had only sought and secured at special term, a bill of particulars of an affirmative plea in the answer, it would not be disturbed at general term. But, as seen, the answer here specifically denies plaintiff’s alleged performance, hence defendants should not have been required to furnish a bill of particulars of the times and manner of plaintiff’s non-performance, and the order requiring him to do so should be reversed, with $10 costs.

Fitzsimons, J., concurs.