McDonnell v. Stevens

Per Curiam:

This is an appeal from an order referring the action to a referee to bear and determine. The order was made on the pleadings, and on an affidavit stating that the trial of the action would require the examination of a long account. This fact, stated in the affidavit on the part of the plaintiff, was denied on the part of the defendant. No bill of particulars liad been demanded or furnished. The case on the motion, therefore, rested on the pleadings alone.

The action was based on a contract which provided for the finishing of certain buildings by the defendant, and it was charged that they were not completed, ready for occupancy, according to the agreement, and damages were claimed for the breach. It was in regard to such damages that the claim of an examination of a long account was made, It is plain, however, that such damages were not in any respect a matter or subject of account. The measure of damages for the breach would be the difference in value between the houses as they were, and their value had they been finished according to the contract, with, perhaps, such additional damage as the plaintiff had sustained by reason of their not being finished at the time agreed upon for their completion. There was no matter of account embraced in such claim for damages. Even if the plaintiffs were allowed to show numerous particulars in which the defendant was in default in the performance of the contract, and the damage growing out of such cases of specific default, still the damages could not be made matter of account between the parties in any sense.

Order reversed, and motion denied, with ten dollars costs of motion, and ten dollars costs and disbursements on the appeal.

Present — LbaeNed, P. J., Bocees and BoaedmaN, JJ.

Ordered accordingly.