
    HENRY SCHILE, Plaintiff and Respondent, v. WILLIAM BROKHAHNE, Defendant and Appellant.
    Before Curtis and Van Vorst, JJ.
    
      Decided, August 1, 1876.
    I. PARTICULARS, BILL OF.
    
    1. Tort, action of, e.g. : Trespass, Trover, etc.
    
      (а) Right, not a matter of right.
    (б) Discretion. May be ordered in the sound legal discretion of the judge to whom the application for a bill of particulars may be made after hearing both parties.
    1. Further bill. In case the one first furnished, whether voluntarily or by order, is defective, a further one may be ordered by the court in the exercise of a like discretion.
    (c) Contents of.
    
    Same precision, as in an action on contract, not required.
    
      (a) Damages, different classes of.
    1. A bill of particulars only gave the gross amount of each one of five different classes of damages. A motion for a further bill teas denied, and the decision teas sustained on appeal.
    
    This is an appeal from an order made at Special Term, denying the defendant’s motion for an order requiring the plaintiff to furnish a further and more specific bill of particulars.
    The action is in tort, being to recover damages for an alleged trespass upon the plaintiff’s premises, by which his stock and fixtures were damaged, and his business greatly injured.
    Upon the defendant’s request, the plaintiff furnished the following statement of his claim for the stock injured, for the fixtures damaged, and for the injuries to his business and income, viz :
    
      “ Bill of particulars of the amount of damages sustained by the plaintiff and claimed herein against the defendant, relative to 2STo. 36 Division St., IS". Y. :
    “Damages to business, fixtures and stock, placed on and near western wall and injured by removal thereof, one thousand five hundred and eighty dollars.
    “Damages to household furniture, carpets and other articles belonging to plaintiff’s family, two hundred and twenty dollars.
    “Damages sustained on account of the decrease of business, by loss of customers and profits, two thousand dollars.”
    “Damages by reason of the plaintiff being kept at home on account of defendant’s acts, instead of attending to his wholesale business, carried on elsewhere than at said premises, five hundred dollars.
    “ Damages suffered by reason of the inconvenience and annoyance consequent upon defendant’s said wrongful acts, seven hundred dollars.”
    The complaint charges that the defendant’s acts through which the plaintiff’s loss and damage were sustained were committed in February, 1876.
    In opposition to the motion for a further bill, there was read an affidavit made by one of the plaintiff’s attorneys.
    
      Field & Deyo, attorneys, and of counsel for appellant, urged :
    I. The defects shown in the notice of motion az'e vital. The defendant is as much in the dark as before the bill of particulars was served. A bill of particulars should set forth with all practicable particularity, the date, amount, and general character of each item (Kellogg v. Paine, 8 How. 329. See note to Brewster v. Sackett, 1 Cow. 572, where all the cases are collected). Time is material (Quin v. Astor, 2 Wend. 577; Humphrey v. Cottleyou, 4 Cow. 54). The rule is the same whether the action is in contract or tort (See Humphrey v. Cottleyou, last above cited, which was an action in trover. See also Tilton v. Beecher, 59 N. Y. 176). The opposing affidavit does not show that it is impossible to give dates. The last three items of damage set forth in the bill should certainly be limited as to the time within which the damages accrued, for they must necessarily have a direct relation to the number of days the plaintiff’s occupation of the premises was interfered with.
    II. The office of the bill of particulars is to limit the proof (Kreiss v. Seligman, 8 Barb. 439. See p. 440 S. C., 5 How. 425). Under the bill furnished the plaintiff may, in case of evil intent, add indefinitely to the articles alleged to have been damaged, and vary as he may think necessary the articles themselves. The court will at once perceive that there is a wide scope given to the plaintiff to vary his demand to suit the exigencies of his case, while the defendant is kept in as much ignorance as he was before the bill was served. As the matter now stands, it will be impossible for the defendant to show or propose to show that any estimated damage of the plaintiff is incorrect.
    
      Nehrbas & Pitshke, attorneys, and of counsel, for respondent, upon the points decided by the court, urged :
    I. If, in the exercise of judicial discretion, the court sees that the knowledge of the occurrences on which the plaintiff’s claim rests, is more with the defendant than with the plaintiff, it may refuse to require the latter to furnish dates or minute particulars, especially where the defendant has not attempted to dispute or explain the acts with which he is charged (Young v. DeMott, 1 Barb. 30 ; Ives v. Shaw, 31 How.). Though the court has the power, it may refuse on the merits (Tilton v. Beecher, 48 How. 175) ; this is a matter in the discretion of the judge, upon hearing both parties, and considering all the circumstances of the 
      
      case (Humphrey v. Cottelyou, 4 Cow. 54). Since a bill of particulars limits the right of recovery to the items stated (Bowman v. Earle, 3 Duer, 691), the court may well accept the plaintiff’s description as sufficient, “as it would often amount to a denial of justice, if a party who had been injured by another should be deprived of all remedy, unless he could describe, with accuracy, every article” (Blackie v. Neilson, 6 Bosw. 681).
    The court might deem it unreasonable to require the plaintiff to go through his entir ebusiness-stock and have the specific injuries estimated as to each, by appraisement—all having been more or less damaged, by the elements, while plaintiff’s premises were open as aforesaid. It is hardly proper to force him to do that by anticipation (Murphy v. Kipp, 1 Duer, 659).
   By the Court.—Van Vorst, J.

The power of. the court to order a bill of particulars of the plaintiff’s claim in an action of this character is not questioned. It is sanctioned by the Code, § 158, and by authority (Tilton v. Beecher, 59 N. Y. 176).

In Blackie v. Neilson (6 Bos. 681), it is stated that in an action for the conversion of personal property the defendant is not entitled, as a matter of right, to require the plaintiff to furnish him with a particular statement or description of the chattels for the value of which the action is brought.

But in the discretion of the court such description, -in the nature of a bill of particulars, may be ordered (Fullerton v. Gaylord, 7 Robt. 551). Whether a statement of the particulars of the plaintiff’s claim, when furnished voluntarily or by order of the court, is sufficiently explicit, or whether a further one should be ordered, is to be determined by the judge to whom the same is submitted for consideration, and its disposal rests in his sound discretion, on hearing both parties, under all the circumstances of the case (Humphrey v. Cottelyou, 4 Cow. 54).

In an action of trespass, by which the personal property and business of a party is damaged and injured, it might be exceedingly difficult to fix an unyielding estimate of specific damage, unless an appraisal was had by persons competent to judge.

The case differs essentially from that in which items of an account in an action upon contract, is asked for. There precision as to values and amounts can be readily acquired.

The amount of the plaintiff’s damage to each article is in fact unadjusted, as also to his business, and can be ascertained only by a competent appraisal, or by the evidence on the trial.

The complaint states with sufficient explicitness the date of the trespass.

The plaintiff, in his affidavit, read on the motion, states that it would be difficult to give precise dates and amounts, since the aggressions of the defendant were a series of acts ; and that to specify all his injury, an inventory of his business must needs be taken, which would require time and labor.

We are not disposed to interfere with the discretion exercised by Sedgwick, J., before whom the motion was heard, and who upon consideration denied the application.

The order appealed from is affirmed with costs.

Curtis, J., concurred.  