Stillwell v. Hernandez

7 Daly 485

• Court: New York Court of Common Pleas
• Decided: February 4, 1878
• Status: Published

Opinion

Larremore, J.

This is an appeal from an order denying a motion on defendant’s behalf for a hill of particulars of plaintiff’s claim. The complaint sets forth some preliminary facts by way of inducement to, and explanatory of, the agreement, viz.: Defendant’s representations that certain property owned by him in the city of Matanzas, island of Cuba, would produce a certain rental value and profit, that the Spanish Government had embargoed the property, and that he was desirous to have the same released, etc. Then follow averments setting forth a special contract as to plaintiff’s services and compensation in case he procured the removal of such embargo ; his performance of the agreement in this particular, and a demand and refusal of payment of a specific sum of which the agreement furnished the basis of computation. The only purpose to be served by a bill of particulars in such a case would be a disclosure of the evidence of the alleged facts, which is not allowable in a pleading.

Plaintiff’s contract, as alleged, is express and entire,' and must be proved as laid or the action fails. If he prove performance he is entitled to the compensation as fixed, no more, no less. Without such proof no recovery can be had for any amount, (Ives v. Shaw, 31 How. Pr. 54; Fullerton v. Graylord, 7 Robt. 551.) No demand has been made for á copy of the account, but an appeal is made to the discretion of the court, in pursuance of § 531 of the Code, for a bill of particulars. This question was carefully examined and discussed by Judge Van Iioesen in Orvis v. Jennings (6 Daly, 434), recently decided by this court, and within the principles of that decision I think the order appealed from should be affirmed.

Charles P. Daly, Ch. J., and Robinsoh, J., concurred.

Order affirmed.