Cleary v. Ott

Appellate Terms of the Supreme Court of New York

Cleary v. Ott

149 N.Y.S. 893, 1914 N.Y. Misc. LEXIS 1301

CourtAppellate Terms of the Supreme Court of New York

DecidedNovember 18, 1914

DocketNo. 10

StatusPublished

Cited by1 cases

This text of 149 N.Y.S. 893 (Cleary v. Ott) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cleary v. Ott, 149 N.Y.S. 893, 1914 N.Y. Misc. LEXIS 1301 (N.Y. Ct. App. 1914).

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Opinion

LEHMAN, J.

The plaintiff sues for the balance due for goods sold and delivered and work, labor, and services performed in certain buildings owned by the defendant. The defendant has obtained an order for a bill of particulars stating, among other matters:

“The precise locations where the material, alleged in paragraphs I and III of the complaint to have been sold and installed, were installed, and how said materials were distributed into the buildings, .floors, rooms, and walls.”

Prior to the making of the order the plaintiff had served an itemized statement showing in minutest details the materials furnished to each building and the number of days’ labor used. Upon the hearing of the motion the plaintiff made an affidavit that it is impossible to comply with the demand, that the precise location and distribution of each item of material and labor as to “floors, rooms, and walls” be furnished, and that no record is ever kept by a builder of the exact location of every item of material and labor furnished in respect to a building, and he kept no such record in the present case.

It is, of course, true that a bill of particulars should never be ordered which goes beyond the details which the party may reasonably be presumed to be able to furnish, and in this case it is perfectly evident that the contractor cannot possibly state the exact distribution of such items as a keg of nails. On the other hand, it is to be noted that the order does not state specifically that the plaintiff is required to give details of the exact distribution of every item given in his minute statement. The plaintiff undoubtedly knows what work he has performed, and in making deliveries at the premises of doors» sashes, timber, etc., he must have known what part of the work required the use of such materials. If he will furnish such information as he must be presumed to have of the use of his materials, he could in all probability comply with the order reasonably construed. Upon an appeal from the order we certainly cannot presume that the . order would be so construed as to require the impossible.

Order should therefore be affirmed, with $10 costs. All concur.

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LEHMAN, J.

The plaintiff sues for the balance due for goods sold and delivered and work, labor, and services performed in certain buildings owned by the defendant. The defendant has obtained an order for a bill of particulars stating, among other matters:

“The precise locations where the material, alleged in paragraphs I and III of the complaint to have been sold and installed, were installed, and how said materials were distributed into the buildings, .floors, rooms, and walls.”

Prior to the making of the order the plaintiff had served an itemized statement showing in minutest details the materials furnished to each building and the number of days’ labor used. Upon the hearing of the motion the plaintiff made an affidavit that it is impossible to comply with the demand, that the precise location and distribution of each item of material and labor as to “floors, rooms, and walls” be furnished, and that no record is ever kept by a builder of the exact location of every item of material and labor furnished in respect to a building, and he kept no such record in the present case.

It is, of course, true that a bill of particulars should never be ordered which goes beyond the details which the party may reasonably be presumed to be able to furnish, and in this case it is perfectly evident that the contractor cannot possibly state the exact distribution of such items as a keg of nails. On the other hand, it is to be noted that the order does not state specifically that the plaintiff is required to give details of the exact distribution of every item given in his minute statement. The plaintiff undoubtedly knows what work he has performed, and in making deliveries at the premises of doors» sashes, timber, etc., he must have known what part of the work required the use of such materials. If he will furnish such information as he must be presumed to have of the use of his materials, he could in all probability comply with the order reasonably construed. Upon an appeal from the order we certainly cannot presume that the . order would be so construed as to require the impossible.

Order should therefore be affirmed, with $10 costs. All concur.

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Bluebook (online)

149 N.Y.S. 893, 1914 N.Y. Misc. LEXIS 1301, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cleary-v-ott-nyappterm-1914.

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