
    Jeremiah O’Rourke and Others, Respondents, v. United States Mortgage and Trust Company, Appellant.
    
      Bill of particulars, as to non-peiformance of a contract for services set forth as the basis of the plaintiff’s cause of action — not required of a defendant denying such performance.
    
    Where, the substance of the answer, interposed in an.action brought by architects to recover for services rendered under a contract of employment, is a denial of the performance of the contract by the plain tiffs who are required to prove performance to entitle them to recover, the plaintiffs are not entitled to a bill of particulars specifying the items as to which they have failed to perform. The defendant is entitled, upon a denial of performance by the plaintiffs, to prove any particular in which the plaintiffs have failed to perform the contract, and he. should not be restricted in such proof by a requirement that he specify the particulars in which he expects to meet and disprove the plaintiff’s (. allegation of performance. . ' ’
    
      Appeal by the defendant, the United States Mortgage and Trust Company, 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 11th day of March, 1904, granting the plaintiffs’ motion that the defendant be required to furnish a bill of , particulars.
    
      Theodore H. Lord, for the appellant.
    
      Henry R. Willis, for the respondents.
   Ingraham, J.:

This action is to recover upon a contract, a copy of which is annexed to the complaint. By this contract the plaintiffs, who were architects, were employed to act in the preparation of plans and specifications for the construction of a hotel or apartment house, and to supervise the erection of the building, the plaintiffs claiming that under the contract they were entitled to the sum of $39,624.68, of which they have been paid $30,000, leaving a balance due for which they seek to recover. The complaint alleges the complete performance by the plaintiffs of the contract on their part. The answer admits the making of the contract, denies that the amount was due to the plaintiffs as claimed by .them, denies that the plaintiffs performed the contract, and alleges that the plans were carelessly, negligently and improperly prepared, that the plaintiffs failed to furnish such expert knowledge or advice in their capacity as such architects as was requisite in the construction of the building, and generally that the plaintiffs had failed to perform the contract on their part. The answer also sets up two counterclaims whereupon the defendant served upon the plaintiffs a demand for a bill of particulars. This consisted of sixteen separate demands' relating to the first counter claim, and five separate demands relating to the second counterclaim. The court granted an order requiring the defendant to furnish the plaintiffs with a bill of particulars setting forth the matters specified in the demand of the plaintiffs, except as to the 11th, 13th, 14th and 15th paragraphs of the demand.

We do not think that the plaintiffs are entitled to the particulars in relation to the first counterclaim except as to the 16th paragraph. ' This counterclaim consisted of an allegation of the particulars in which the plaintiffs had failed to pérform their contract. The performance of the contract was alleged by the plaintiffs, and to recover they are required to prove such performance. We have, frequently held that where the substance of the answer is a denial of the. performance of the contract by the plaintiff who is required to prove performance to entitle him to recover, the plaintiff is not entitled to a bill of particulars specifying th© items in which he has failed to perform; that the defendant is entitled, upon a denial' of performance by the plaintiff, to prove any particular in which the plaintiff, has failed to perform the contract, and that he should not be restricted in such proof by requiring him to specify the particulars in which he expects to meet and disprove the plaintiff’s allegation of performance.

The 16th paragraph of the plaintiffs’ demand is the only one relating to the first counterclaim to which we think the plaintiffs are entitled. That requires the defendant to give an itemized statement setting forth in detail the money damage alleged to have been sustained by the plaintiffs in excess of the amount claimed by the plaintiffs by reason of negligent and improper conduct of the plaintiffs. With regard to the demand for particulars as -to the second counterclaim, the 1st paragraph of that demand should not be allowed for the reason before indicated. It requires the defendant to give an itemized statement setting forth in detail the extent of the failure of the plaintiffs to perform their agreement. Its performance is a matter for the plaintiffs to prove. As to the 2d, 3d, 4th and 5th' paragraphs of the demand, we think the court below correctly required the defendant to give the particulars. They relate to the items of the defendant’s damage.

The order appealed from should be modified by requiring the defendant to furnish the plaintiffs a bill of particulars, setting forth in detail the money damage which-the defendant alleges it sustained, in excess, of the amount claimed in the complaint, by reason of the negligent and improper conduct of the plaintiffs as set forth in the 5th. paragraph of the answer, and also to furnish an itemized statement as specified in the 2d, 3d, 4th and 5th demands for a bill of particulars in relation to the .second counterclaim contained in the answer, and that the plaintiffs’ motion for other particulars, except as thus stated, be denied, and the order as modified is affirmed, without costs.

O’Brien, McLaughlin, Hatch and Laughlin, JJ., concurred.

Order modified as directed in opinion, and as modified affirmed, without costs. '  