
    Albert Korber, Appellant, v. The Dime Savings Bank of Brooklyn, Respondent, Impleaded with John Thatcher and Edward Thatcher, Copartners Doing Business under the Firm Name and Style of John Thatcher & Son, Defendants.
    Second Department,
    October 8, 1909.
    Pleading—bill of particulars — exemplary damages — trespass on lands — particulars of damage denied.
    In an action-for tort the trial judge should instruct the jury that'they may give exemplary damages if the tort was malicious.
    The complaint in such action need not specifically ask for exemplary damages, nor should the plaintiff be required to furnish a bill of particulars stating whether.such damages are claimed.
    Where a complaint for trespass on lands alleged that by reason thereof the plaintiff was compelled to quit the premises, .to remove his goods therefrom, and to engage temporary quarters and maintain the same at an additional expense for the remainder of the term, whereby profits which would otherwise have accrued to him were diminished and impaired, he should not be required to furnish a bill of particulars stating whether damages are claimed for the loss to the rental value, loss of profits, or whether exemplary damages are claimed, or all of such, as he will be entitled to any rule of damages that fits his proof, admissible under the pleadings.
    Hirschberg, P. J., and Burr, J., dissented.
    Appeal by the plaintiff, Albert Korber, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 15th day of April, 1909, granting the motion of the defendant bank for a bill of particulars.
    
      Henry M. Dater [George F. Elliott with him on the brief], for the appellant.
    
      W. W. Taylor, for the respondent.
   Gaynor, J.:

The complaint is for damages for trespass on real estate of which the plaintiff was lessee, and in the second cause of action for blocking the street and preventing access to the plaintiff’s said premises, where he carried on business. The complaint -alleges with great particularity every act of trespass and of obstruction committed by the defendants in erecting a building on the adjoining land, and that “by reason. thereof plaintiff was * * * compelled to quit the said premises and to remove his goods therefrom and to engage temporary quarters for the purposes of his business and to maintain the same at an additional expense to himself for the remainder of the term of the lease of said premises ” ; and then “ that by reason of the said several premises the profits that would otherwise have accrued to plaintiff from his said business were greatly diminished and impaired ”.

The learned court below has ordered the plaintiff to furnish a bill of particulars “'setting forth the grounds” of his claim for damages, “to wit, whether damages are claimed for loss to the rental value, loss of profits, or exemplary damages, etc., or all of such”. To order the plaintiff to say whether he will claim exemplary damages on the trial is an abuse of the office of a bill of particulars. It is for the learned trial judge in actions of torts to instruct the jury that they may add exemplary damages, or smart money, if the tort was malicious. It is not necessary that the complaint specifically ask therefor, itiuch less -that a bill of particulars should be furnished in respect of it. As to loss of profits, the complaint specifically alleges it. As to the damage to the rental value, the complaint specifically goes beyond that; and yet the proofs may be such that the damages cannot go beyond it. The plaintiff is entitled on the trial to any rule of damage that fits his proofs, admissible under the pleadings. If he is denied damage under one rule he may claim under another. This order goes altogether outside of the office of a bill of particulars, and is vexatious.

The order also requires an “ itemized statement of the damage to his furniture, fixtures, and goods and wares”. The only injury alleged thereto is by dust from the building material of the defendant. Although no such particulars are asked for in the moving-papers, it may be that they were properly ordered, although it may be difficult to itemize such damage. The matter is minor, if not trifling.

The order should be modified in accordance with this opinion, and as modified affirmed, without costs.

Jenks and Rich, JJ., concurred; Hirschberg, P. J., and Burr, J., dissented.

Order modified in accordance with opinion, and as modified affirmed, without costs.  