
    P. J. Duff & Sons, Inc., Respondent, v. Morris Levin, Appellant.
    (Supreme Court, Appellate Term, First Department,
    April, 1912.)
    Bill of particulars — when authorized—■ damages — nonperformance of contract.
    Where, in an action to recover the reasonable value of work done and material furnished under a building contract, the answer pleads as a counterclaim that plaintiff did not do all the necessary woik, or furnish all the material required by the contract, and did not do the work according to the plans and specifications, but so carelessly and negligently as to cause damage to the ceilings, 'walls, etc., of at least $2,000, the plaintiff is only entitled to a bill of particulars as to the rooms in which the ceilings and walls were so damaged, and an itemized statement of said damages.
    Appeax by the defendant from an order of the City Court ,of the city of blew York granting the plaintiff’s motion for a bill of particulars of defendant’s counterclaim.
    Warren McConihe, for appellant.
    Dayton, Bailey & Middlebrook (James A. Dayton, of counsel), for respondent.
   Gerard, J.

The action is brought to recover the sum of $1,306, the alleged reasonable value of work, labor, services and materials furnished by plaintiff to defendant, less certain payments made on account.

The. answer contains a denial of the material allegations of the complaint and then sets up counterclaims aggregating $4,025 for damages for alleged breach of contract, it being alleged in the answer that plaintiff performed certain work under a contract with defendant; that it did not do all the necessary work therein required; that it did not' furnish all the materials required; that it did not do said work in accordance with the plans and specifications and did • the same carelessly and negligently, causing damage to the- ceilings and walls, etc., of at least $2,000.

The defendant was directed to serve 'upon the plaintiff a bill of particulars showing a detailed statement of the work and materials which were required by the contract but were not furnished by plaintiff, and a detailed statement showing in what respects the work was not done in accordance with the plans and specifications, the particular rooms in the building in which the ceilings and walls were damaged, and an itemized statement of the amounts of damage which make up the alleged damage of $2,000.

The defendant claims that a bill of particulars cannot be ordered in this case, citing Reitmayer v. Crombie, 94 App. Div. 303; O’Rourke v. United States Mortgage & Trust Co., 95 id. 518; Brandt v. City of New York, 110 id. 396; Radcliffe v. New York Cab Co., 134 id. 450, and also cites the decision at Special Term in Herman v. Leland, N. Y. L. J., June 6, 1911, but he omits to state in his brief that Herman v. Leland was reversed by the Appellate Division. See Herman v. Leland, 148 App. Div. 641, and in the opinion there Mr. Justice Miller reviews the cases cited by appellant.

In Herman v. Leland, the plaintiff sued for services rendered as a master builder and confidential agent of the defendant in negotiating with materialmen and contractors and settling liens and charges upon an unfinished house purchased by the defendant and in procuring the labor and materials necessary to complete the same and in supervising such completion. The defendant set up a counterclaim for damages sustained by reason of the plaintiff’s alleged negligence, in addition tb want of skill, and alleged that by reason thereof the costs of satisfying said liens and charges and. of completing the building was $115,000, whereas it should have been only $90,000, and it was held by Mr. Justice Miller that, as the plaintiff must prove performance of his contract, he should not be permitted to limit the defendant’s proof on that issue, and that he was, therefore, not entitled to the particulars of the plaintiff’s negligence and failure to perform his agreement, but that it would be difficult for the plaintiff to prepare to meet the defendant’s claim for damages, unless apprised of the particulars thereof and, therefore, the defendant was required to furnish particulars of the items making up the sum of $25,000 in excess of the amount which the defendant claimed was the reasonable cost of completing the building and satisfying the charges thereon.

Following this decision, I think that the order should be reversed as to particulars one, two and three, which called for particulars of the work and materials required by the contract, which defendant alleges were not furnished, and also the demand which calls for particulars showing in what respect the work was not done in. accordance with the plans and specifications, but the plaintiff is entitled to. the particulars specified in demands numbers four and five, namely, the particular rooms in said building in which the ceilings and walls were damaged and an itemized statement of the amounts of damage which make up the alleged damage of $2,000, and the order should be modified accordingly, without costs of this appeal to- either party.

■ Seabuby and Guy, JJ., concur.

Order reversed as to particulars one, two and three and modified as to particulars four and five, without costs.  