Eugene Cohn, for plaintiffs (respondents).
Jeroloman Arrowsmith, for defendant (appellant).
The complaint is on a quantum meruit for work done and materials furnished to defendant at his request. The plaintiffs furnished a bill of particulars of their claim, and thereafter, and after service of the answer, moved for a bill of particulars of part of defendant's defenses, which he was directed to furnish by the order from which this appeal is taken.
The appellant's contention is that "the answer is a general denial, and though the defendant has put his denial of performance in a somewhat more specific form than was necessary, the plaintiffs cannot avoid the obligation to furnish proof to establish their right to recover," and hence that he was improperly ordered to furnish a bill of particulars of his alleged defense. However, his answer does not contain a general denial, and contains no specific denial except as to the reasonable worth of the work and materials, and, therefore, the plaintiffs would, upon the trial, be called upon to prove only the value of the items of work and materials specified in their bill of particulars, and need not prove that the same were performed or furnished for or requested by defendant. The order appealed from, required the defendant to furnish a bill of particulars of the defense set up, or attempted to be set up, in the second paragraph of his answer, which "alleges that the plaintiffs did and performed for defendant certain labor and furnished certain materials," but that part of the same was not performed and furnished at his request, and was different from the work which he had requested them to do. There is not, in terms, an allegation that the certain labor and materials are the same labor and materials mentioned in the complaint or any part thereof; but assuming that inferentially there is, still this plea, if not insufficient and frivolous, is at best too indefinite and uncertain to inform plaintiffs as to what items of labor and material, alleged in the complaint and specified in their bill of particulars, is to be disputed by defendant on the trial, and to this information they certainly are entitled.
It may be that plaintiffs could have requested and secured greater relief, and assailed this plea as insufficient and frivolous, or had it made more definite and certain. However, they have only asked for a bill of particulars which shall specify whether the work and materials mentioned in this paragraph of the answer are the same work and materials referred to in the complaint, or any part thereof, and if so, what part, and what part thereof, was not performed and furnished at his request, etc. If their motion had taken another form, as suggested, it is true that they might have so forced the desired information, but that cannot be good reason for reversing an order which rests in the sound discretion of the court by section 531 of the Code, which says "the court may, in any case, direct a bill of particulars," and which has often been exercised in extraordinary and celebrated cases, and sustained by the Court of Appeals. Tilton v. Beecher, 59 N.Y. 176; Dwight v. Germania Insurance Co., 84 id. 493; Cunard v. Francklyn, 111 id. 511.
The only limit to the exercise of this power seems to be, do the moving papers disclose such a condition of affairs as will force the conclusion, that a bill of particulars is necessary to enable the moving party safely to meet his adversary at trial. The exercise of this power has seldom been disturbed on appeal, while the refusal to exercise it has often met reversal. The bill of particulars as to the second paragraph of the answer was properly ordered, and so, too, as to the fourth paragraph. Murray v. Maybie, 8 N.Y.S. 289.
The order appealed from is affirmed, with $10 costs.
EHRLICH, Ch. J., and McCARTHY, J., concur.