Opinion
November 20, 1908.
Ferdinand W. Buermeyer, for the appellant.
Alexander Pfeiffer, for the respondent.
Present — PATTERSON, P.J., INGRAHAM, LAUGHLIN, CLARKE and SCOTT, JJ.
The plaintiff sues to recover upon a bond given by defendant to secure the performance of a building contract. The complaint alleges the making of the contract; the failure of the contractor to carry it out, and perform the terms and conditions thereof, and that plaintiff has thereby sustained damage. The defendant asks to be informed, by a bill of particulars, in what respects the contractor failed to carry out its contract, and what items go to make up the plaintiff's damage. We think that the motion should have been granted. ( Hopper v. Weber, 84 App. Div. 266; Kelly v. St. Michael's Roman Catholic Church, 124 id. 505.) The defendant is not in the position of a plaintiff who alleges that he has fully performed on his part, and seeks to ascertain what the defendant claims has not been performed. In such case a bill of particulars has been refused to a plaintiff because he knows what he agreed to do, and what he did, and must prove, as well as allege, full performance. The defendant surety is not to be presumed to know wherein his principal failed, or what damages resulted therefrom, and is entitled to be informed what plaintiff claims upon these points, in order properly to prepare for trial.
The order appealed from should be reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.