Ernst v. Electrical Audit & Rebate Co.

115 N.Y.S. 731

• Court: Appellate Terms of the Supreme Court of New York
• Decided: March 17, 1909
• Status: Published

Opinions

MacLEAN, J.

The plaintiff orally complained for “breach of contract,” and the defendant orally answered, “General denial; bill of particulars.” Issue was thus joined on the return day of the summons, June 15, 1908. Thereafter, by a bill of particulars dated June 20, 1908, the plaintiff set forth two causes of action, both in force and effect— one for breach of contract, and the other for fraud, particularizing each cause. The trial justice at the trial denied the motion of counsel for the defendant “that the plaintiff be directed to elect as to which cause of action he will go on.” The denial of the motion was strictly proper, as but one cause of action had been pleaded, viz., breach of contract, and by the interposition of its general denial the defendant raised issue thereon prior to any submission of a bill of particulars, which, as has been said by this court, “is not a part of the pleadings and cannot enlarge the cause of action.” Toplitz v. King Bridge Co., 20 Misc. Rep. 576, 580, 46 N. Y. Supp. 418. Its office is one of amplification. Taylor v. Security Mutual Life Ins. Co., 73 App. Div. 319, 323, 76 N. Y. Supp. 671.

The agreement, for the breach of which this action was instituted, reads as follows:

“Electrical Audit and Rebate Company, Incorporated.

“Metropolitan Life Building, Madison Square, New York.

“Date, Dec. 17/06.

“We request you to make such inspection as you deem necessary of our electric installation, for the purpose of determining correctness of charges for current, and agree to pay your inspector $100 on presenting certificate of inspection.

“It is further understood and agreed that, without extra charge, you will obtain the cheapest contract for our electric current, also test our meters, and examine motors, whenever necessary, and audit, our bills for one year from date, as they are presented to you monthly; also all bills for past three years, and guarantee to obtain rebates on all overcharged bills to date, or refund the fee paid under this contract.

“Solicitor, -. Name.

“Address.

“Not responsible for any agreement made with solicitor other than stated herein.

“Accepted: Electrical Audit & Rebate Co.”

What the defendant agreed to do was expressed in the above, whereon was expressly excluded, any agreement made with a solicitor other than therein stated. An inspection was made; and certificate, dated December 18, 1906, was given therefor; but, failing to prove the presentation to the defendant of any bills for audit subsequent to the date of his agreement with the defendant, or the presentation of any overcharged bill for a period of two years prior thereto, the plaintiff clearly failed to establish a breach of that agreement by the defendant, or of its guaranty therein contained; for, although in its letter of January 5, 1907, to the plaintiff, the defendant stated, “We claim positively there are overcharges,” it does not appear whether the overcharges were upon current bills or upon bills to date of agreement.

The cause for fraud was not in issue, nor consented to be tried by the defendant, and therefore was not established. In all the vagueness of the powers committed to the Municipal Court by the Municipal Court act (Laws 1892, p. 1732, c. 685), it is not provided that the learned trial justices may frame up new declarations and allegations for plaintiffs. The judgment must therefore stand as rendered.

Judgment affirmed, with costs.