
    Francis P. B. Sands, Respondent, v. The Holland Torpedo Boat Company, Appellant.
    First Department,
    October 19, 1906.
    Bill of particulars to frame amended answer denied.
    When the plaintiff sets out a contract of specific date made by the defendant through a specific agent, employing the plaintiff to secure contracts with the government for the purchase of torpedo boats at a specific commission, and that he procured the purchase of four boats, the defendant having served an answer denying the contract and having an affidavit of the agent denying the same, is not entitled to a bill of particulars for the purpose of preparing an amended answer.
    
      It seems, that on a proper showing, a bill of particulars in order to prepare for . trial might be proper.
    Appeal by the defendant, The Holland Torpedo Boat Company, from an order of the Supreme Court, made at the Hew York Special Term and entered in' the office of the clerk of the county of Hew York on the 31st day of May, 1906, as modified by an order entered in said clerk’s office on the 11th day of June, 1906.
    
      Norman G. Johnson, for the appellant.
    
      James C. Bergen, for the respondent.
   Scott, J.:

The defendant appeals from an order denying its motion for a bill of particulars, which, as it avers, is necessary in order to enable it to frame an amended answer,

The action is for services said to have been rendered by plaintiff, and the complaint alleges that on March 19, 1903, one Elihu B. Frost in his capacity as duly accredited representative, agent, attorney or officer of the defendant company, engaged, retained and employed plaintiff to render and perform services for said defendant in connection with forwarding and advancing its business in the securing of contracts with the government of the United States for the construction of or purchase by the said United States of submarine torpedo boats of the type of the Holland submarine torpedo boat, and said defendant, by said Frost, thereupon promised and agreed to pay to plaintiff the sum. of $1,000 per boat on each Holland submarine torpedo boat which should thereafter be bought ■ or appropriated for by said government of the United States before the end of the then next session of Congress ending about. June or July, 1904; that thereupon and in consideration of.said promise plaintiff performed the services for the performance of which he was so employed, and ior which the $1,000 per boat was agreed to be paid him; that on April 27,1904, the contingency upon which payment was promised by defendant to plaintiff occurred .and became a fact, and Congress did make appropriations of money wherewith to purchase four submarine torpedo boats of the type aforesaid. The defendant, by its answer, denies positively the allegations of the complaint respecting plaintiff’s employment and the agreement with him and his rendition of services, and denies upon information and belief the allegation ’respecting, the appropriation by Congress. 'The defendant is not entitled to and does hot require a bill óf particulars to enable it to prepare an amended answer, which is the sole purpose disclosed by the,-moving affidavits. The complaint is ■unusually specific. Itgives the precise date of the contract sued upon, and the name of the officer who, as- is alleged, contracted on behalf of the company. Clearly no bill of particular’s is needed’witli respect' to either of these matters. - Frost, the officer who it is", said acted for the company, positively denies that he made any such contract, if he did not, there-was no contract, and the affidavits of other officers to-the effect that they knew of no such contract, are superfluous.. The plaintiff does not sue upon a quani/wm meruit, but upon a contract that he should be paid a definite sum upon the happening of a certain contingency. Ho particulars of his services are necessary to enable defendant to amend its answer, the original answer positively denying the rendition of services at all. Hor is it necessary at this time that defendant should be informed whether the contract -sued upon was in writing or oral. The defendant avers positively and without qualification that no contract at all was made. Frost, with whom "it is said to have been made, also denies it. If Frost bases his denial upon some- presumed invalidity or defect in sorne transactions between himself and plaintiff, which plaintiff may construe" as a contract, he knows what the'se transactions were and will _ doubtless be willing to communicate them to defendant.

" " The" order appealed from reserve's leave to defendant to renew its motion if it can show that it needs' particulars in order to prepare , for trial. If it can hereafter show such necessity this leave assures it all that it can be entitled to. It certainly is not entitled to a bill of particulars for the purpose of preparing an amended answer.

The order should be affirmed, with ten dollars costs and disbursements.

O’Brien, P. J.’, Ingraham, Clarke and Houghton, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements. Order filed.  