
    Peter Blake, Pl’ff, v. John J. Harrigan, individually and as Ex’r, et al., Def’ts.
    
      (Supreme Court, Special Term, Albany County,
    
    
      Filed October 6, 1890.)
    
    1. Bill of pabticulabs—Mechakic’s lick.
    In an action to foreclose a mechanic’s lien, the defendant set up as a counterclaim a breach of contract and damages arising therefrom. Held, that the alleged counterclaim was not upon an account, and that plaintiff, if entitled to relief under § 531, must seek for a bill of particulars, not for items of an account.
    3. Same—Affidavit fob must be made by pabty.
    An affidavit for a bill of particulars must be made by the party desiring it, unless some excuse for his failure to do so is shown. The mere affidavit of the attorney, with the pleadings, is not enough.
    Motion for a bill of particulars.
    Action to foreclose two mechanic’s liens. The answers set up counterclaims amounting to $9,500 for damages for alleged breach of contract by plaintiff and for moneys paid out by defendant Harrigan on account of such breach, and for damages by reason of plaintiff’s failure to complete his contract within the required time.
    Plaintiff’s attorneys served a written demand for a copy of the items of defendant’s claim and a bill of particulars, and upon failure of defendant to comply therewith made this motion.
    
      Mead & Matt, for pl’ff; Edward J. Meegan, for def’ts.
   Learned, J

There seems to be a distinction in Code, § 531, between “items of an account” and “particulars” of a claim. Thus in the well known Tilton v. Beecher and Dwight v. Germania Insurance Company cases it could not be said that there was an account of which items were given. But the party was required to furnish particulars of the claim.

This action is to foreclose a mechanic’s lien. The defendant sets up as a counter-claim, in substance, that the plaintiff entered into a written contract, set forth, therein, with defendant to build a certain building; that the plaintiff has failed to perforin the contract; that thereby the defendant has been put to great expense in completing the same; also, that he has suffered liquidated damages by the failure to complete, and also loss in rent by the same failure.

Now this alleged counter-claim is not upon an account which defendant has against plaintiff. It is on the breach of plaintiff’s contract; and the statement of defendant’s expense is a statement of the damages resulting. The plaintiff, therefore, if entitled to relief under § 531, must seek for what is there called a bill of particulars of the claim, not for items of an account.

This being so, the defendant insists that the mere affidavit of the attorney, with the pleadings, is not enough; that there should be the affidavit of the plaintiff (or excuse made), showing the necessity of ordering such bill of particulars. I think the position of defendant is correct. Hoeninghaus v. Chaleyer, 22 N. Y. State Rep., 528; Gridley v. Gridley, 7 Civ. Pro., 215; 1 Rumsey’s Pr., 278. It is certainly the general rule that affidavits (excepting such as relate to mere matters of practice) ought to be made by the parties rather than by the attorneys. As above stated, this counter-claim is not on an account; it is for damages caused by an alleged breach of the contract. If the plaintiff needs to be further informed of the particulars in respect to which he is alleged to have broken the contract, I think it is for him to make the necessary affidavit and not for his attorney.

The present motion is denied, with ten dollars costs, without prejudice to.another motion to direct a bill of particulars.  