
    S. H. POMEROY CO. v. WELLS BROS. CO. OF NEW YORK (two cases).
    (Supreme Court, Appellate Division, First Department.
    March 22, 1912.)
    1. Pleading (§ 317)—Bill oe Pabticulaks.
    In an action to recover for breach of a contract to purchase certain articles used in the construction of a building, where plaintiff alleged the expenditure of a certain sum, and that the whole cost of completing the contract would not exceed a certain sum, it is improper to require him to state, in a bill of particulars, the number of men employed in the worla done and the number that probably would have been employed to complete the contract.
    [Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 95A-962; Dec. Dig. § 317.*]
    2. Pleading (§ 239*)—Amendment—Costs.
    An amendment increasing the amount of damages claimed for the breach of a contract to purchase did not justify the imposition of costs as a condition; such amendment not changing the cause of action, and being such as might have been allowed at the trial, if the proof justified it.
    [Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 626-635; Dec. Dig. § 239.*]
    Appeal from Special Term, New York County.
    Action by the S. H. Pomeroy Company against the Wells Bros. Company of New York. From an order granting defendant’s motion for a bill of particulars, and an order granting plaintiff’s motion for leave to serve amended bill of particulars and a second! amended complaint, and! precluding plaintiff from giving testimony as to particulars not furnished, plaintiff appeals. Modified and affirmed.
    Argued before INGRAHAM, P. J., and LAUGHLIN, CLARKE, SCOTT, and MILLER, JJ.
    Lewis R. Conklin, for appellant.
    Robert B. Knowles, for respondent.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date. & Eep'r Indexes
    
   SCOTT, J.

The plaintiff appeals (1) from an order requiring it to-serve a bill of particulars, and (2) from an order requiring defendant, upon terms, to accept a bill of particulars and supplemental bill tendered by plaintiff, and precluding plaintiff from introducing any evidence and giving any testimony upon the trial of the action as to any facts not set forth in the bill of particulars, and also permitting plaintiff, upon terms, to amend its complaint by increasing the damages sued for.

■ The complaint alleges that defendant and plaintiff entered into an agreement whereby the latter was to manufacture and furnish certain articles, to be used in the construction of a building; that, after-plaintiff had proceeded to execute the" contract, the defendant repudiated it, and refused to carry it out. The action is for damages for the refusal to permit plaintiff to complete the contract, and the amount of damages claimed is based upon the difference between the contract price and what it would have cost plaintiff to complete. The allegation is that plaintiff had spent $1,000 in fulfillment of the contract, before defendant repudiated it, and that the whole cost to plaintiff of completing the contract would not have exceeded $11,000.

With the answer defendant demanded a bill of particulars. Plaintiff attempted to comply with this demand, arid served a bill and' amended bill. Being dissatisfied with these, defendant returned them, and moved for a bill of particulars, which motion resulted in the order first appealed from. Pending the appeal from that order, plaintiff' served an unusually complete bill of particulars, which the defendant returned as failing to comply with the order. Upon a motion that defendant be required to accept the bill of particulars, the second, order appealed from was made.

The order for the bill of particulars required plaintiff to state,, among other things, the number of men employed in performing the work, costing $1,000, actually done under the contract, and the number of men that would have been employed if plaintiff had been permitted to complete the contract. This, we think, was more than defendant was entitled to,- and plaintiff’s excuse for not complying with, this part of the order, which it incorporated into the bill of particulars, seems to be entirely reasonable. The order for the bill of particulars must therefore be modified, by striking out the requirement that the plaintiff state the number of men employed, and that probably would have been employed to complete the contract, and, as so modified, affirmed, with $10 costs and disbursements to 'appellant. With, this provision stricken out of the first order, the only colorable objection to the bill served by plaintiff is removed, and consequently the imposition upon plaintiff of $10 costs as a condition of requiring defendant to accept the bill must be stricken out. So, also, and for the same reason, must the preclusion clause be stricken out, as well as for the further reason that it is too broad, and by its terms covers, matters not related to the bill of particulars.'

The amendment of the complaint increasing the amount of" damages claimed was not of a character justifying the imposition of costs as a condition. It did not change the cause of action in anyway, and was an amendment which might have been allowed at the trial, if the proof justified it.

The second order appealed from must therefore be modified, by striking out all terms imposed upon plaintiff, andl also the preclusion clause, and, as modified, is affirmed, with $10 costs and disbursements to appellant. All concur.  