Kallus v. Fleischer Studios, Inc.

255 A.D. 812, 7 N.Y.S.2d 233, 1938 N.Y. App. Div. LEXIS 5407

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 28, 1938
• Status: Published

Opinion

Action for damages under an alleged breach of a contract for personal services, advanced on the theory of special contract and quantum, meruit. Order on reargument, dated September 1, 1938, modified so as to provide that plaintiff also be directed to furnish the particulars covered by the items marked 6(a), 6(b), 6(c), 6(d), 6(e) and 6(f) in defendant’s demand. As so modified, the order is affirmed, with ten dollars costs and disbursements to appellant, unless within ten days from the entry of the order hereon plaintiff stipulate that he will not adduce evidence on the quantum meruit theory; in which event the order is affirmed without modification, with ten dollars costs and disbursements to appellant. If plaintiff fail so to stipulate, the bill of particulars may be served within ten days from the entry of the ofder hereon. The allegations of the complaint entitle plaintiff to adduce evidence on the theory of special contract or of quantum meruit. The particulars allowed to defendant were limited to those properly required on the express contract theory of the complaint. The defendant is entitled to particulars on the quantum meruit theory also unless plaintiff furnish such stipulation. In the absence of the stipulation, the particulars must be furnished. (McGuire v. Hall, 61 App. Div. 571; 3 Carmody’s N. Y. Practice, § 1103, and cases cited.) Appeal from order entered June 21, 1938, dismissed, without costs. Lazansky, P. J., Carswell, Adel, Taylor and Close, JJ., concur.