Excelsior Terra Cotta Co. v. Harde , 74 N.Y.S. 163 ( 1902 )

Per Curiam:

The action was brought to foreclose a mechanic’s lien upon the defendants’ premises for which the plaintiff had furnished terra cotta work. The answer denied that he had properly performed the contract and, by way of counterclaim, averred that much of the terra cotta work was not of the proper kind or quality, to the defendants' damage $1,500; that it was not supplied within the time required, and the building was, therefore, delayed until after the renting season, the resulting loss to the defendants being $15,000; that by reason of such delay they were obliged to cancelcontracts with masons and themselves complete the work at an extra cost of $1,800, and that they were obliged to retain superintendents, watehnen and other employees and u were otherwise further damaged in the sum of nineteen hundred dollars. ” The plaintiff asked forabill of particulars of the counterclaim, and the court, with some slight modifications, granted it as requested; and from the order so entered, the defendants appealed. The paragraph numbered 1 of the order allowing the bill of particulars refers to the alleged defects in the terra cotta and requires that the defendants state “In what respects the terra cotta * * * was not made to the satisfaction of defendants or their architects.” The paragraph numbered 2, with its subdivisions, relates to the same subject and with more detail demands what portions of the terra cotta, “ specifying their location in the building,” were not according to the plans, and wherein the terra cotta was of inferior quality and workmanship. We think paragraph 2 with its subdivisions should be stricken out. It is in its nature a repetition of the 1st paragraph, and unnecessary detail is called for. The subject is one of which the plaintiff already has knowledge, since he furnished the material; and to the extent that he is prepared to maintain his action, wherein he alleges proper performance of the contract, he is prepared to meet the counterclaim. We think, therefore, that so far ¡as it is necessary to properly set forth the counterclaim, paragraph 1, which requires that the defendants state generally in what ; respects the terra cotta was unsatisfactory, . is sufficient. The two following paragraphs : of the order for the bill of particulars refer to ' alleged loss of rents arising from delay on the part of the plaintiff: The claim of $15,000 is large, and is over twice the amount for which the action is brought, and the plaintiff is entitled to ample information, the subject being more peculiarly within the defendants’ knowledge. These paragraphs, therefore, should stand with the exception that subdivisions “a" and of the paragraph numbered u 5,” requiring the dates of the applications for apartments and the-items claimed as loss of rents, should be stricken out, for the subject is sufficiently covered by the subdivisions u a.” “b” and “c” of this paragraph. With respect to the paragraph numbered u6,” which relates to the alleged loss because of the cancellation of the contracts with masons, we think it is not necessary that the names and addresses of the masons referred to be given, it being sufficient if, instead, the defendants specify what contracts they were obliged to cancel. So, too, in paragraph “7,” with regard to the names and addresses of the persons alleged to have been paid for extra work owing to the delay in the work, we think it is sufficient that the defendants state the number of superintendents, watchmen and other employees, the length of the aggregate employment- and the aggregate amount of com-, pensation paid. Finally, we think that the paragraph numbered u 9,” calling for items making up the alleged loss of $1,900, should be omitted, as it is covered by paragraphs “7” and “8.” As modified in the respects indicated, the order allowing the bill of particulars should be affirmed, without costs. Present — Van Brunt, P. J., Patterson, O’Brien and Laughlin, JJ.