Compart v. Emma Willard School

152 A.D. 915, 137 N.Y.S. 474

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 15, 1912
• Status: Published

Opinion

Per Curiam:

In addition to the particulars directed to be given we think that the plaintiff should have been required to give a bill of particulars stating whether it was excused from performing the various portions of the contract which it claims it was excused from performing, by verbal direction or in writing, and by whom, and also in what manner it claims the defendant rendered it unnecessary for the plaintiff to obtain the certificate of the architect as to payments earned, whether by writing or verbal waiver, or by acts of the defendant, and if the latter, what acts, and if the former, by whom. Although the plaintiff alleges damages to a large amount by reason of the default and negligence of the defendant and the changing and altering of the contract, such damages are not in a strict sense general damage concerning which no bill of particulars should be ordered. If the delay and default of the defendant caused the plaintiff any damage, such damage was made up of expenses which it incurred, because its men were idle or had to be reassembled, or because material spoiled or wasted or was more expensive to obtain, and if any changes or alterations were made of the contract, the damage suffered consisted of increased labor and material. The plaintiff cannot state his grievances to the jury and let them estimate his damage, nor is it a subject of expert „ opinion. He must, therefore, prove the items of his damage. The plaintiff knows what those are or what they are claimed to be, and it will greatly facilitate the trial and work no hardship, we think, to compel it to state in advance of the trial of what such claims consist. The plaintiff should, therefore, also be required to serve upon the defendant a bill of particulars of the changes and alterations from the contract made by the defendant and the increased cost of material and labor caused thereby and by the defaults and delays of defendant. If there be any other element of damage which the plaintiff can lawfully prove, no bill of particulars need be given thereof. The order should be modified requiring a further bill of particulars as indicated, and as so modified affirmed, with ten dollars costs and disbursements to the appellant to abide the event of the action. All concurred. Order modified as stated in opinion and as so modified affirmed, with ten dollars costs and disbursements to the appellant to abide the event of the action. _