Bowman v. Earle — 10 N.Y. Super. Ct. 691

Majority

p. 691

George Bowman v. William P. Earle.

Headnote

A bill of particulars limits a recovery to the matters named in it, and proof cannot be given at the trial of claims not embraced in it.

After a verdict or report of a referee for a greater sum than is claimed in the complaint, a complaint should not be amended by increasing the amount of damages claimed, except upon the terms of granting a new trial, and payment by the plaintiff of the costs of the trial already had, and of the costs of opposing the motion.

When an order, obtained by a party, is settled ex parte, entered, and a copy of it served, and the judge who made it, on a re-settlement which he directs, modifies it by altering the terms of the original draft order, the party obtaining the order, if he would limit the time in which to appeal from it, must cause it to be entered as it is finally settled, and serve a copy of it. From the time it is resettled, and as resettled, it is the only order there is in relation to the matter covered by it.

(Before Oakley, 0. J., Dubb, Campbell, and Boswobth, J.J.)

This action comes before the court on an appeal from each

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of three several orders made in it, and upon a motion to dismiss one of the appeals. In the complaint, the plaintiff states that he was retained by the defendant as his attorney and counsel, to defend two actions brought against the defendant in the Hew York Common Pleas, and that he did defend them, and made disbursements, &c. One of those actions was brought by a Mr. Stone, as plaintiff, and the other by a Mr. Baskerville. The plaintiff furnished a bill of the particulars of his claim. By that he claimed, in the action brought by Stone :

Costs,......$126.23

Trial fee,......25.00

Bill of exceptions, - 20.00

$171.23

In the action brought by Baskerville:

Costs,......$134.24

An answer was interposed, containing allegations of facts, which the defendant claimed should reduce the amount which the plaintiff might, but for the matters thus alleged, be entitled to recover.

On the 3rd of March it was referred to a referee, “ to adjust the costs, and certify the counsel fees (if any), and the amount of compensation which the plaintiff is entitled to, if entitled to recover in this action, reserving other questions for-trial in the usual course.”

On the 5th of May, 1854, the referee made his report, in which he reported that in the suit brought by Stone, the plaintiff was entitled to receive for—

Costs,......$115.00

Bill of exceptions, - 15.00

Retaining fee and drawing answer, - 25.00

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And in the suit brought by Baskerville:

For costs,. - - - - - - $123.50

Retaining fee and drawing answer, - 25.00

negotiation,.....25.00

On the motion to confirm the report, the three items of $25 each, not included in the bill of particulars, but allowed by the referee, the defendant insisted could not be allowed, because, among other objections made, they were not included in the bill of particulars. The judge, at Special Term, disallowed one of these items, and in other respects confirmed the report.

The order on that decision was entered on the 2'6th of June, 1854. The defendant obtained an order the next day, requiring the plaintiff to show cause why the order of the 26th of June should not be resettled and modified. On the 1st of July it was resettled and modified, and on the same day as resettled, was entered.

The defendant appeals from that order. The plaintiff moves to dismiss that appeal, because it is an appeal from an order “ entered July 1, 1854,” insisting that in truth there is no order of that date, and that the order confirming the report is dated and was entered the “ 26th of June, 1854,” and that a copy of it was served on defendant’s attorney on the 27th of June. The motion is also based on affidavits, that no copy of any order made on the 1st of July was ever served on the plaintiff, and that the notice of appeal from the order of “ July 1, 1854,” was not served until the 6th of September, 1854.

On the 7th of August, 1854, an order was made at Special Term, allowing the plaintiff to amend his summons and complaint in regard to the amount claimed, so as to admit of a recovery of the sum of $328.50—the amount allowed by the report as confirmed. The complaint itself prayed judgment for $305.47. The order declared that it was made on the condition that the referee’s report be set aside, and a new trial had before such referee. It also provided that the costs of both trials and $10 costs of the motion, to the plaintiff, abide the event of the action. From that order the defendant appeals.

p. 694

After these appeals were taken, an order was made, staying all proceedings on the part of the plaintiff until a decision upon them at the General Term. The plaintiff moved to so far modify this order as to allow him to notice the action, and put it on the trial calendar, and bring to trial the issues not embraced in the order of reference. That motion was denied on the 18th of September, and from that order the plaintiff appeals.

In this action, the plaintiff seeks to recover for services rendered by him as the attorney and counsel of the defendant, in the defence of two suits. He puts his own estimate upon his services in his complaint, and states his own judgment of their value, and names in the summons and in his complaint an amount for which he prays judgment. His complaint being general, he furnished a bill of the particular items of Ms claim. In it were no charges for two matters allowed in the report of the referee.

A bill of particulars has the effect to restrict the proofs, and limit the recovery, to the matters set forth in it. It is regarded as an amplification of the pleading to which it relates, and is to be construed as forming a part of it. The order of reference did not authorize the referee to take proof of any matters not included in the bill of particulars. It follows, therefore, that the order confirming the report was erroneous, as the report allowed to the plaintiff two items of $25 each, viz. in one suit for “ Retaining fee and drawing answer,” and in the other for “ Negotiation ”—neither of which was included in the bill of particulars. That order should be reversed, if the appeal was taken within the time allowed by law.

Was it contrary to the uniform and settled practice of the courts to allow the plaintiff to amend his summons and declaration by increasing the amount of damages claimed, on the terms imposed by that order? In Dox v. Dey, 3 Wend. 356 , the court refused to allow such an amendment after verdict, except upon the terms of the plaintiff’s abandoning his verdict, and paying the defendant’s costs of the trial, and of opposing the motion.

In Corning v. Corning, 2 Selden, 97, the judge, at the trial,

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made an order after verdict, allowing the plaintiff to amend his complaint, by increasing the amount of damages claimed to correspond with the verdict. Judgment was thereupon entered corresponding with the verdict. The court at General ■Term, on appeal, reversed the order allowing the amendment, and ordered the judgment reversed, unless the plaintiff remitted the excess recovered beyond the amount claimed: The excess was remitted, and the judgment was then affirmed for the reduced amount. On appeal to the Court of Appeals it was decided, that after verdict the court had no power to amend a complaint by increasing the amount of damages, except upon the condition of the plaintiff’s relinquishing his verdict, paying the costs of the trial already had, and consenting to a new trial.

This amendment was not made after verdict, but was made after the report of a referee had been confirmed, which fixed the amount of the plaintiff’s recovery, unless it should be reduced on some ground other than the reasonable worth of the plaintiff’s services. The value of the services, unless shown to have been so negligently and unskilfully performed, as to have prejudiced the defendant, was no longer an open question after the report had been confirmed. The principle of the rule declared in Corning v. Corning would seem to be as applicable to the report of a referee as to the verdict of a jury.

It seems to be a just rule to apply to a case in which a plaintiff seeks to amend solely to enable him to recover for an ordinary service, in conducting a suit as attorney and counsel, for which he did not see fit to make a special and separate charge or claim in his bill of particulars. There is no pretence that he omitted to make such charge inadvertently, or by oversight, or that he supposed the terms of his bill of particulars were broad enough to enable him to make proof of it on the trial. The order did not allow the bill of particulars to be amended. Neither did it require the plaintiff to pay the costs of the first reference, or provide that in any event the costs of that reference, and of resisting the order to amend, should be recovered by the defendant. It declared that the plaintiff’s right to them should abide the event of the suit. We think this order should be reversed.

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We see no reason for interfering with the order denying the motion, to modify the order staying plaintiff’s proceedings until the decision of the appeals taken by the defendant.

As to the motion to dismiss the appeal taken from the order of July 1st, 1854, it is obvious that the’appeal was taken from the order of June 26, 1854, as resettled on the 1st of July.

Instead of making an order on the 1st of July, by its terms modifying the order of the 26th of June, so as to make two separate orders, the order of the 26th of June was resettled, portions of it were erased or expunged, and additional or substituted clauses were incorporated into it. As resettled, it became, and thence was, the only order in the action confirming the report. In that form it was entered on the 1st of July. It was in effect and in fact an order obtained on the plaintiff’s motion. He has not served a copy of it, as it was finally settled and entered. From an order, the party against whom it is obtained may appeal, within thirty days after written notice to him of the order. (Code, § 332.) Ho such notice having been served, it follows that the appeal was not taken too late, and the motion to dismiss it must be denied.

The orders of July 1st and August 7th, 1854, must be reversed, and that of the 18th of September, 1854, affirmed; and the order of July 1, 1854, must be so modified as to disallow the three items of $25 each, allowed by the report of the referee, being in the suit brought by Stone, for “ Retaining fee and drawing answer, $25and in the suit brought by Baskerville, for “Retaining fee and drawing answer, $25,” and for “ negotiation, $25and in all other respects confirming it, without prejudice to defendant’s right to prove on the trial any facts set up in his answer, which would justly entitle him to have the amount reported against him reduced. Ho costs of obtaining the orders, or upon the appeals, to be given to either party.

Cases cited

Dox v. Dey 3 Wend. 356 N.Y. Sup. Ct. p. 694