United States Land Investment Co. v. Mercantile Trust Co. ( 1889 )

Brady, J.

This action was brought to compel a specific performance of an alleged agreement relative to the certification of the plaintiff’s bonds by the defendant, and to recover damages suffered in consequence of the defendant’s alleged refusal to perform the agreement. The complaint, after stating the making of the agreement suggested, and compliance with its terms, alleges that the plaintiff has entered into large and important business contracts and enterprises, and contracted large pecuniary obligations, which were contracts and enterprises greatly to its advantage, and from which it reasonably expected to and would realize large pecuniary profits if the defendant had performed its contract; and, further, that, by reason of the defendant’s refusal to perform its part of the contract, the plaintiff had been and was subjected to great pecuniary loss and damage. Upon these allegations the learned justice in the court below thought the defendant entitled to a bill of particulars, as sought, of these contracts and enterprises, and of what profits were expected therefrom. The learned counsel for the respondent seems to contend that, the action being one seeking only to enforce the specific performance of a contract, the application for the bill of particulars should have been denied in toto; urging, in reference to the prayer for damages, that the plaintiff would, after an adjudication upon his demand for equitable relief, seek by subsequent proceedings in the action to obtain damages for the defendant’s persistent and continued breach of the contract,—damages which it would have sustained; and this to avoid multiplicity and circuity of action. But this view cannot be sustained. A bill of particulars is proper in all descriptions of actions where the circumstances are such that justice demands the party should be informed of the matters for which he is to be tried with greater particularity. Tilton v. Beecher, 59 N. Y. 176, 184; Dwight v. Insurance Co., 84 N. Y. 493, 505; Cunard v. Francklyn, 111 N. Y. 511,19 H. E. Rep. 92. Without considering, therefore, the discretionary element involved in directing the order, it is quite apparent that it should have been granted. The defendant should not be subjected to a trial or called upon to answer charges so indefinite as those contained in the complaint, and to which reference has been particularly made; nor should the defendant be required to go to trial as long as the claim for damages remains without a full exposition of all the elements of which they are composed. The whole subject, that view being carried out, would be before the trial court, which could award damages if the plaintiff’s cause of action was sustained in thatrespect, and avoid circuity of action by not sending the subject of damages to a referee for investigation. The direct mode of disposing of the issues presented by the pleadings is that which the courts will favor, invariably, as the most speedy and the least expensive waj’ to determine them. For these reasons the order appealed from should be affirmed, with $10 costs, and the disbursements.