Berry v. Johnstone

170 A.D. 893, 154 N.Y.S. 1112

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 15, 1915
• Status: Published

Opinion

Dowling, J.:

In so far as plaintiffs appeal from the order in question, it is affirmed. In so far as defendants appeal therefrom, it will be reversed, and their motion granted to the extent of requiring plaintiffs to serve within twenty days a bill of particulars as follows: (1) A detailed statement of each and every instance where the alleged inferior butter brought less upon resale by the plaintiffs than the prevailing market price of the make specified in the contract, including each date, number of tubs, number of pounds, price received, place of sale, name and address of purchaser and market price which should have been received had it been the make specified in the contract. Also the date on which the butter was received by the plaintiffs from the defendants, and the storage lot number thereof. (2) A detailed statement of each and every instance where the alleged inferior butter brought, upon resale by the plaintiffs, from two to five cents per pound less than the plaintiffs paid for the same, including each date, number of tubs, number of pounds, place of sale, name and address of the purchaser, price received and price originally paid. Also the date on which the butter was received by the plaintiffs from the defendants and the storage lot number thereof. (3) A detailed statement of such of the alleged inferior butter as was still on hand in the possession of the plaintiffs at the time the complaint was verified. Also each and every sale since then, together with the date and place of the same, the price received and the name and address of the purchaser. Also the date on which the butter was received by the plaintiffs from the defendants and the storage lot number thereof. (4) A detailed statement of each and every instance When, the alleged inferior butter being in turn resold by the plaintiffs, the purchasers, because of its inferior quality, refused to accept and receive it, so that the plaintiffs were compelled to dispose of it at a great loss, stating specifically the date and place of each resale, the name and address of each purchaser, the date of each refusal, rejection or return, the date, place and manner of each subsequent disposition, the name and address of the person to whom it was thus disposed of and the price received thereon. Also the date on which the butter was resold by the plaintiffs from the defendants and the storage lot number thereof. (5) A detailed statement of each and every sum of money for storage and other charges on the alleged inferior butter, and of the interest on each and every sum of money borrowed to purchase the same, stating specifically the date, place and amount of each sum of money thus expended. Ten dollars costs and disbursements of the appeal are awarded to the defendants against the plaintiffs. Ingraham, P. J., Clarke, Scott and Hotchkiss, JJ., concurred.. In so far as plaintiffs appeal, order affirmed; in so far as defendants appeal, order reversed and defendants’ motion granted to the extent stated in opinion, with ten dollars costs and disbursements to defendants against the plaintiffs. Order to be settled on notice.