Opinion
June 13, 1913.
Henry B. Johnson, for the appellant.
Frank R. Greene, for the respondent.
Two causes of action are alleged in the complaint in separate counts. In the first the plaintiff alleges that on or about the 8th day of December, 1911, it was employed by defendant as a broker to procure the acceptance of a first mortgage loan for $25,000 on premises and terms therein specified; that it opened negotiations with the Sag Harbor Savings Bank and interested said bank therein to the extent that on or about the 14th day of December, 1911, it offered to consider making the loan if plaintiff would transmit a formal application signed by its client inclosing a check for $10 to cover costs of appraisal; that plaintiff immediately duly notified defendant and requested him to sign the application and to inclose his check to be transmitted to the bank to cover the expenses of appraising the property; that defendant wholly failed to comply with this request and without the knowledge or consent of and for the purpose of defrauding the plaintiff, immediately opened negotiations with the bank and obtained the loan upon the same terms through such direct negotiations; that it was agreed that plaintiff should receive ten per cent of the amount of the loan for its commissions and disbursements, and that payment of said amount has been duly demanded of defendant and refused. The second count is a quantum meruit for the same services.
The defendant by his answer admits that he obtained a loan from the Sag Harbor Savings Bank for the amount and upon the terms specified in the complaint; but every other material allegation of the complaint is denied.
The affidavit of the defendant upon which the application for the bill of particulars was made shows, among other things, that he made no contract and had no negotiations with the plaintiff, either directly or indirectly, with respect to procuring the loan, and that he has been unable to obtain any information in the premises from his employees, and, in effect, that he is wholly without information concerning the facts alleged in the complaint.
The application was granted to the extent of requiring the plaintiff to give a bill of particulars stating whether or not the contract on which the first cause of action is based was oral or in writing, and if in writing, to set forth a copy thereof. The defendant's demand for a bill of particulars in all other respects was denied. If the contract was oral, the defendant sought, among other things, to ascertain further by a bill of particulars by whom, when and where it was made in behalf of defendant; and whether the notice to the defendant of plaintiff's application to the bank and the action of the bank thereon, and plaintiff's request that defendant sign the application and send a check were oral or in writing, and if oral, to whom and when and where given and made, and if in writing, that a copy be set forth. With respect to the second cause of action the defendant desired information by bill of particulars, among other things, as to whether the request that plaintiff perform the services was oral or in writing, and if oral, by and to whom, and when and where made, and if in writing that a copy be set forth.
We are of opinion that the defendant was entitled to a bill of particulars in addition to that granted by the order to the extent we have enumerated his demand therefor. The rule is well settled that where a party is without information concerning a contract alleged to have been made or other negotiations or proceedings alleged to have been had or taken by him through an agent, he is entitled to a bill of particulars giving the name of the agent and specifying the time and place, and to a copy of any contract or other writing. ( Rhodes v. Adams, 113 App. Div. 304; Fischel v. Fischel, 121 id. 868; Knickerbocker Trust Co. v. Packard, 109 id. 421; Taylor v. Security Mutual Life Ins. Co., 73 id. 319; Riker v. Erlanger, 87 id. 137; Dietz v. Leber, 33 id. 563.) In all other respects we are of opinion that the motion was properly denied.
It follows that the order for the bill of particulars should be modified by granting the motion therefor to the further extent herein specified, and as so modified affirmed, with ten dollars costs and disbursements.
INGRAHAM, P.J., McLAUGHLIN, CLARKE and SCOTT, JJ., concurred.
Order modified as directed in opinion, and as modified affirmed, with ten dollars costs and disbursements. Order to be settled on notice.