Opinion
April 8, 1910.
Edwin D. Hays, for the appellant.
Louis J. Altkrug, for the respondent.
This action is brought to recover a balance of $40,441.29, claimed to be due on sales of merchandise between December 19, 1906, and December 1, 1907, of the aggregate value of $158,259.14. The answer contains sixty-six affirmative defenses and counterclaims, involving a large number of separate transactions. They may be grouped into four classes: (1) A counterclaim or setoff for discounts pursuant to special contracts; (2) counterclaims for breach of warranty; (3) counterclaims for breach of contract in refusing to deliver on demand; (4) counterclaims or setoffs for overcharges for interest on sums paid for goods returned and the like. The plaintiff is a large corporation, having over 500 employees in its New York office and about 55 salesmen.
The respondent contends that the motion was properly denied because the motion papers fail to show that the plaintiff's officers have not the information sought, and because the opposing papers show that all of the transactions involved are recorded on the plaintiff's books. The answer to that is that the plaintiff wants the particulars of what the defendant claims. It is unnecessary to repeat what this court has recently said respecting the office of bills of particulars. (See Dwyer v. Slattery, 118 App. Div. 345. ) In a case involving transactions so numerous and complicated as the defendant's answer makes those in suit appear to be, it is especially desirable that each party may know in advance of the trial the precise nature of the claims which he has to meet, otherwise the trial will be unduly protracted.
It is necessary only to state the particulars which the defendant should furnish. They are: (1) The name or names of the person or persons with whom, the time when, where the time is not stated in the answer, and the place or places in the city of New York where the various contracts relied upon by the defendant were made; (2) the name or names of the person or persons upon whom the different demands pleaded were made, whether said demands were oral or in writing; if in writing, a copy of each, and if oral, the substance thereof.
With respect to the other matters asked for, we think the answer is sufficiently specific. Special damages have not been pleaded, and the allegations with respect to the rejection of goods by the defendant's customers are surplusage.
There might be some doubt whether the third to the eleventh counterclaims, inclusive, were founded on breach of warranty or breach of contract to deliver, or both. The plaintiff would, on a proper motion, be entitled to have that doubt solved. But both parties say that these counterclaims are for breaches of warranty, and hence we need not concern ourselves with the matter on this appeal.
The order should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs, requiring the defendant to furnish the particulars hereinbefore stated.
INGRAHAM, P.J., LAUGHLIN, CLARKE and SCOTT, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted to extent stated in opinion. Settle order on notice.