
    Strohmeyer & Arpe Company, Respondent, v. The Hartley Silk Manufacturing Company, Appellant.
    First Department,
    January 8, 1909.
    Pleading — bill of particulars — sale — particulars of counterclaim.— damages on failure of seller to deliver goods of agreed quality.
    Where a buyer, sued for breach of contract,.alleges as a counterclaim that the goods .tendered were inferior and that it bought goods of the agreed quality in the open market at an advanced price, and demands as damages the difference between the market price and the price at which it purchased, no bill of particulars of the items constituting the damage will be ordered where the answer alleges the amount of goods purchased, the contraet price and the price in open market, for the damages are a mere matter of computation.
    Moreover, the defendant should not be. required to state the date and place of purchase of the goods bought in the open market, the name of the seller, or the price, etc., as those matters cannot be proved on trial against the plaintiff’s objection. This, because if the plaintiff in fact failed to deliver goods of the agreed quality, the measure of damages is the difference between the contract and the market price at the agreed date of delivery or within a reasonable time thereafter. The defendant was not bound to purchase other goods in order to fix the damage, and proof of the amount paid therefor would be inadmissible either to fix -the damage or to establish the market prices unless 'the goods could not be bought in open market and in such case special damage must be alleged.
    Ingraham and McLaughlin, JJ., dissented, in.part, with opinion.
    Appeal by the defendant, The Hartley Silk Manufacturing 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 12t-h day of Hovember, 1908, granting the plaintiff’s motion for a bill of particulars.
    
      
      Clifford Seasongood, for the appellant.
    
      Henry L. Scheuerman for the respondent.
   Scott, J.:

In my opinion the .order for a hill of particulars should be reversed in toto. Plaintiff sues for damages arising out of defendant’s refusal to take certain goods alleged to have been purchased by defendant. Defendant counterclaims in two counts,. alleging that the goods delivered were of inferior quality, and that it was obliged to buy and did buy goods of the agreed quality in the open market at an advanced price. It claims as damages the difference between the market price and the price at which it purchased in the open market. ¡No special damages are alleged. The order appealed from requires defendant to state the items constituting the damage claimed. All agree that so much of the order should be reversed because the counterclaims distinctly state the amount of goods purchased, the contract price and the price paid in the open market. The amount of damages claimed is a mere matter of computation from these items, and no bill of particulars is' necessary. (Greene v. Johnson, 126 App. Div. 33.) The order also requires the defendant to state the date and place of purchase of the goods bought in the open market, the name of the seller, the amount and price thereof, and the terms of purchase and delivery. These particulars should not have been ordered, because the matter referred to cannot be proved o,n the trial, unless plaintiff consents thereto. If plaintiff did in fact refuse to deliver goods of the quality contracted for, the measure of its damage is the difference between the contract price and the market price at the agreed date of delivery, or within a reasonable time thereafter. The defendant was not bound to purchase other goods in order to fix the damages and proof of such purchase, and. the amount paid thereon would be inadmissible either to fix the damages or to establish the market price. To make such proof would be to show special damage, which would be allowed only upon allegation and proof that there was no market price for such goods. There is no such allegation in the answer. On the contrary, there is distinctly alleged that there was an open market. No advantage can come to plaintiff from being informed of the particulars of a transaction which cannot be made a matter of proof on the trial. The order appealed from should be reversed, with ten dollars costs and disbursements, arid the motion denied, with ten! dollars costs.

Clarke and Houghton, JJ., concurred; Ingraham and McLaughlin, JJ., dissented.

Ingraham, J. (dissenting):

The defendant has seen fit to allege in its answer ás' a. defense, arid by. way of counterclaim, that.the plaintiff failed to comply with its Contract, and that it failed to deliver goods of the quality and chajracter that it had warranted and represented ; that the defendant; refused to accept the goods tendered by the plaintiff; and that by reason of the premises it was obliged to purchase the goods, in the open -market-at $2.95 per pound, to the damage of the defendant! of $4,180. It is as to this defense and counterclaim that .the plaintiff demanded a bill of. particulars. The defendant is entitled to have the. question presented upon the trial whether it can reco ver as damages the difference between the contract price and the price at ¡which it was, compelled to purchase the. goods in the open market; and as the plaintiff has to meet that defense and counterclaim, it is,. I think,, clearly entitled to the particulars of the defendant’s claim so that it may be able to meet it. I agree in' the opinion, of. Mr. Justice S.oott in so far as it holds that the first arid third clauses in-the order should not. have been granted, but I think the; plaintiff was entitled to the bill of particulars required by the second and fourth clauses of the order.

I; therefore, think the order should be modified by striking out thei first and third clauses thereof,, arid as só modified, affirmed, without costs to either party.

McLaughlin, J., concurred.

' Order reversed, with . ten dollars costs and disbursements, arid motion denied,- with ten dollars costs.  