
    New York County National Bank, Respondent, v. James S. Herrman, Appellant.
    First Department,
    January 19, 1912.
    Pleading —bill of particulars — motion for further particulars —failure of plaintiff to comply with order requiring particulars.
    Motion by defendant for an order requiring plaintiff to furnish a further bill of particulars on the ground that the particulars furnished did not comply with the original order.
    
      Held, that the bill of particulars was not a substantial compliance with the original order and that the motion for further particulars should be granted.
    Appeal by the defendant, James S. Herrman, 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 3d day of October, 1911, as resettled by an order entered in said clerk’s office on the 30th day of October, 1911, denying the defendant’s motion for a further bill of particulars.
    
      Richard T. Greene, for the appellant.
    
      L. Laflin Kellogg, for the respondent.
   Laughlin, J.:

This action is brought to recover the sum of $75,000, which it is alleged plaintiff was fraudulently induced to pay defendant under a contract made between the parties on the 27th day of April, 1906, by which plaintiff employed defendant to procure and furnish all labor, materials and superintendence required in erecting a bank building for plaintiff at the southwest corner of Eighth avenue and Fourteenth street, according to certain plans and specifications theretofore prepared by . architects, and by which plaintiff agreed to pay' defendant “the fair and reasonable and just cost of materials and labor furnished in the manner and form as prescribed inlaid contract ■ and in addition thereto 5% on cost for superintendence.” It is admitted that defendant procured and furnished all labor and material and superintendence required, and that the building has been completed according to the. plans and specifications; but plaintiff alleges that at divers times between the making of the contract and the 7th day of January, 1908, the defendant, in order to obtain from plaintiff moneys to which he was not entitled and in excess of the reasonable cost or value of the labor and material furnished and in excess of the amount paid by him therefor, “ falsely and fraudulently stated to the plain- " tiff different sums representing the reasonable cost of different items incurred by the defendant under said contract as being the true items of reasonable cost and expenditure as actually made by him, whereas in truth and in fact the said items of cost and expense so represented and stated as aforesaid by the defendant were false and untrue, and known by the defendant to be false and untrue,” and that particularly on. or about the 15th day of January, 1908, the defendant, knowingly and with intent to deceive plaintiff and to obtain money to which he was not entitled, falsely and fraudulently represented and stated to plaintiff that the just and reasonable cost of .the entire building and of the expenditures under said contract, including commissions on superintendence, was the sum of $350,718.93, whereas in truth and in fact the just and reasonable cost of said building and the work called for under said contract, including superintendence, did not exceed the sum of $275,000. Plaintiff obtained an order for the examination of the defendant before trial. The order for the bill of particulars gave plaintiff ten days after the conclusion of the examination of the defendant within which to comply with it. After the close of the examination plaintiff served the hill of particulars, which the defendant claims is not a compliance with the order. It is so manifest that the bill of particulars served is not a compliance with the order that we do not deem it necessary to set out in detail the provisions of the order or the particulars served and point out in each instance the omission. One or two items will fairly illustrate the manner in which the plaintiff has failed to comply with the order.

The order required that the plaintiff state the names of its representatives to whom it is claimed defendant made false and fraudulent statements, giving the times and places and the substance of each statement. The bill of particulars gives the names of three individuals and the place as plaintiff’s bank and twenty-four dates; and with respect to the substance of each of the false and fraudulent statements the bill of particulars merely states that some were verbal and some were in writing, that the written statements were retained by defendant and plaintiff has no copy, and that each was to the effect “ that there had been earned at said time under the plaintiff’s contract a sum of money largely in excess of the sum of money then demanded and provided to be paid at that time,” and that the statements on January I, 1908> were verbal and in writing and those in writing related to “the contract price of the several sub-contracts as to the amount of labor and as to the amount of the incidental bills,” and that “all other details of the work were there represented as true and correct,” and plaintiff, relying thereon, paid out $19,866 “additionally and in excess of the amount already paid out in excess of amounts due at said time.” The order also required the plaintiff to give an exact statement of the items of cost or value of materials and labor as claimed to have been represented by the defendant to the plaintiff. The only attempt to comply with this requirement is a schedule of many dates with figures under the dollar sign opposite prefaced by the following: “ At the following dates the amount of cost or value of materials and labor was stated to be in excess of the sums opposite thereto;” and that between January 1 and 15, 1908, “the amount of Contracts,” “the amount of Labor Account,” “the amount of Incidental Bills,” and the amount of the defendant’s commissions were stated at sums specified in the bill of particulars.

The plaintiff having acquiesced in the order for the bill of particulars and not having been relieved therefrom on appeal or otherwise, the only question presented for decision is whether or not the bill of particulars served is a substantial compliance with the order. We deem it quite clear that it is not. The court by the order for the bill of particulars decided among other things that defendant was entitled to know what false representations plaintiff will claim he made with respect to the amounts demanded being more than defendant had paid or was ■to pay, or more than the reasonable value of the work or labor for which he was asking pay or reimbursement, and yet this bill of particulars jumbles labor materials and superintendence together and fails to specify a single item concerning which a false representation was made. If the plaintiff has any basis for its action other than suspicion, it would seem that it should be able, particularly after having exhaustively examined the defendant, to furnish a bill of particulars that will enable defendant to prepare for trial and limit its proof upon the trial as contemplated by the order; and if it cannot or does not, it subjects itself to having its proof limited by its failure to comply with the order, as provided in section 531 of the Code of Civil Procedure.

It follows that the order should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

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

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.-  