
    Charles I. Berg, Respondent, v. Edward C. Griffith, Appellant, Impleaded with James L. Scott, Defendant.
    First Department,
    December 20, 1912.
    Pleading — action by architect to recover ror professional services— ' bill of particulars — compliance with order — order precluding the givingofevidence modified.
    In an action by an architect to recover for professional services under an agreement by which he was to prepare plans, order the work and supervise changes and alterations in a building, defendants counterclaimed ■ for damages on account of the failure of the plaintiff properly to perform his contract. Bill of particulars of the counterclaims examined, and held, that an order precluding the defendants from giving evidence should be modified.
    Appeal by the defendant, Edward 0. Griffith, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 8th day of November, 1912, precluding the defendant Griffith from giving evidence with respect, to certain matters concerning which he was required to give a second and further bill of particulars.
    
      George L. Lewis, for the appellant.
    
      Howard Hasbrouck, for the respondent.
   Laughlin, J.:

This is an action by an architect to recover for professional services under an agreement by which he was to prepáre plans, order the work and supervise certain changes and alterations in a building owned by the defendants, situate 'at the southeast corner of Broadway and Fifty-fourth street, in the borough of Manhattan, and to receive as compensation seven per cent of the total cost thereof. ■ The defendants pleaded four counterclaims for damages on account of the failure of the plaintiff to properly perform his contract. The plaintiff demanded a bill of particulars of the counterclaims, and pursuant thereto the appellant served what purported to be a bill of particulars, the defendant Scott having died in the meantime. The plaintiff, being dissatisfied therewith, applied to the court, and the appellant was duly required to make and serve a further bill of particulars. Pursuant to this order, he served another bill of particulars, which the plaintiff did not consider complied with the order, and he thereupon duly applied to the court, and the appellant was required to make and serve a second further bill of particulars. He acquiesced in this order and attempted to comply therewith; but the plaintiff being dissatisfied with the last bill of particulars, duly applied to the court for an order precluding the appellant from giving evidence with respect to the matters concerning which he claimed the appellant had not complied with the order, and thereupon the order from which the appeal is taken was made.

Subdivision 2 ” of the order required the appellant to state in what respect the plans and specifications provided by the plaintiff were wrong and faulty in their design, as alleged in the answer. With respect to this requirement of the order, it is set forth in the last bill of particulars that the plans and specifications were found to be wrong and faulty in their design, in that the windows on. the first and second floors of said building projected nearly a foot over the street line, and in that they did not properly provide for the placing of fire escapes,” or for the placing of iron shutters on the windows, or for leaving the entrance from Broadway to the basement, or for placing the beams “in the street floor,” and in that said beams were not of proper dimensions and had to be altered, and in that they did not properly provide for the placing of the fire line pipe, electric fixtures and girders in the basement, or for the main entrance on the ground floor, or the high pressure line pipe and electric light line under the main entrance, and the Edison feed and switch box where it enters the building, or the entrance to the elevator; and the bill of particulars speci- ■ fies in like manner various other defects in the plans and specifications. It is quite clear that this was a substantial compliance with the order.

Subdivision “4” of the order required the names and addresses of tenants, other than a particular tenant named, who were ready, able and willing to rent the whole or any portion of the building during the period therein specified, and the rentals they were willing to pay therefor. The bill of particulars specifies the portion of the building that the tenant named, and excepted from the operation of the order, was willing to rent, and the rental it was willing to pay, and adds: “ There was another party whose name the defendant Griffith is unable at present to give, who is engaged in. selling automobiles, who was willing and anxious to take the stores on the southerly half of said building, and was willing to pay therefor the sum of.” $9,500. We are of opinion that this should be regarded as a substantial compliance with the order.

Subdivision “ 7 ” of the order required a statement of the changes made in the fire line pipe in the basement, other than making it come out on Broadway instead of on Fifty-fourth street; and subdivision “ 9 ” of the order required that the bill of particulars state in what respect the elevator pit will have to be reconstructed and adjusted to conform to the requirements of the building department. The bill of particulars sets forth with respect to subdivision “7” of the order that if the fire line pipe had. been placed as required by the plans and specifications it would have passed through the flue of the boiler, and it had to be lengthened to obviate this; and with respect to subdivision “9” that the trim around the vestibule is improperly constructed and will have to be extended down, and the marble around the vestibule will have to be taken out and altered, and that this will require the lowering of the pit of the elevator. This also should be regarded as a substantial compliance with the order.

Subdivision “14” of the order required a statement of the amount which the defendants were obliged to pay because asbestos cell coverings for the steam pipes were not included in the steam fitting contract, specifying that this required a statement of the difference-between the cost of the asbestos cell coverings, if the same had been included in the steam fitting contract, which the plaintiff evidently made on behalf of the defendants, and the amount actually disbursed therefor by the defendants. In answer to this requirement, the appellant states the amount paid by the defendants for asbestos cell coverings for the steam pipe line, and to whom it was paid. The complaint of the defendants with respect to this item is that the plaintiff neglected to provide for this work, and that they were obliged to have it done. It is manifest that the appellant cannot state what would have been the cost of this item had it been included in the contract which the plaintiff made for the defendants,-and, therefore, all that it is possible for him to do is what he has done, namely, to state the cost to the defendants.

Subdivision “ 15 ” of the order further required the appellant to state “ in what respects the water line from the basement of said building to the supply tanks was improperly placed, and what changes were made therein before water could be obtained on the top floor.” He states in answer to this requirement that the water line from the basement to the supply tank was so constructed that water would only rise to the height of the city pressure, which varied greatly at different times, and that the tank on top of the building was pumped full with an overflow so arranged as to keep the water running in the sewer when the city pressure was high, and that changes were required to remedy these defects. This sufficiently states the respects in which the water line from the basement was improperly placed, but it does not state the changes that were made. With the defects thus pointed out, an architect should know the changes that would be required, and it would be rather technical to require a literal compliance with the order in this respect.

We are of opinion that the appellant did not comply with the other requirements, of the order for a bill of particulars.

It follows that the order appealed from should be modified by denying the motion with respect to subdivisions 2,” “4,” 7,”.“9,” “14 ” and “ 15 ” of the order, and as so modified affirmed, without costs.

Ingraham, P. J., Clarke, Scott and Miller, JJ., concurred.

Order modified as indicated in opinion, and as modified affirmed, without costs. Order to be settled on notice.  