Bidwell v. Shaw — 60 N.Y. St. Rep. 846

Majority

p. 846

Charles E. Bidwell et al., App’lts, v. Daniel E. Shaw et al., Resp’ts.

(New York City Court, General Term,

Filed June 20, 1894.)

Headnote

Bill oí particulars—When proper remedy.

Where the plaintiff desires to be more specifically advised as to the nature of defendant’s claim, his remedy is a motion for a hill of particulars and not a demurrer.

Appeal from two orders overruling demurrers and from an interlocutory judgment entered thereon.

Norwood & Filly, for app’lts ; Francis A. Wilson, for resp’ts.

This is an appeal from an interlocutory judgment entered upon an order overruling two demurrers to counterclaims set up in the answer herein. The complaint alleges a contract in writing between plaintiffs and defendants to the effect that defendants were to receive at a fixed price a certain quantity of gambiers to be shipped, at Singapore during the months of April. May, June, July and August, 1893, per sailing vessel-to the port of New York, “no arrival, no sale.” The complaint further alleges the arrival of the gambiers as provided for in the contract; the refusal- of the defendants to receive or accept the same after notice and tender by the plaintiffs, and demand judgment for damages, sustained in labor, insurance, brokerage, storage, interest, etc., growing out of said refusal to perform on the part of the defendants. The answer of the defendants admit the contract and the arrival of the gambiers, and alleges a willingness on their part to perform the contract according to its terms; further answering, and by way of counterclaim, they allege a refusal on the part of the plaintiffs to perform their part of the contract, by a delivery or an offer to deliver the merchandise contracted for, and claim damages generally therefor. Plaintiffs demur to said counterclaim on the grounds that they do not state sufficient facts to constitute a cause of action. In this we think the plaintiffs are in error. The breach of the contract by the plaintiffs as established is sufficient in itself to entitle the defendants to damages, but the nature, character, or measure of damages to which the defendants may be entitled is for the court and jury at trial term. If the plaintiffs desire to be more specifically advised as to the nature of defendants’ claim for damages they may move for a bill of the particular items composing such claim but their remedy is not by demurrer. The order of June 11th overruling the demurrers, and the interlocutory judgment thereon, should be affirmed, with costs. <

Newburger, J., concurs.