
    John Q. A. Ward, Appellant, v. Henry C. Hodges, Respondent, Impleaded with Gates P. Thruston and Others, Defendants.
    First Department,
    March 19, 1909.
    Pleading — action against members of voluntary association — bill of particulars.
    Action to charge defendants, members of a voluntary association, with liability for breach of a contract executed by the chairman of a committee of the association employing the plaintiff to make an equestrian statue. Order requiring the plaintiff to furnish a bill of particulars examined and modified.
    Appeal by the plaintiff, John Q. A. Ward, 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 22d day of October, 1908, directing the plaintiff to furnish a bill of particulars to the defendant Hodges,
    
      John A. Dutton, for the appellant.
    
      Philip J. McCook, for the respondent.
   Ingraham, J.:

The action is to charge the defendants, who were members of a voluntary association, with liability for the services of the plaintiff ■as a sculptor in making a statue of General Sheridan. There was a written contract which was annexed to the complaint and which is dated Headquarters of the Society of the Army of the Cumberland, Washington, D. C., April 23, 1892,” by which contract the plaintiff agreed with the said Society of the Army of the Cumberland, by J. S. Fullerton, chairman of its committee, to model and complete, in fine bronze, an equestrian statue, of' the late Lieutenant-General Philip H. Sheridan in substantial accordance with the design theretofore submitted and accepted by the said Society of the Army of the Cumberland, and to deliver the same at the city of Washington by the 1st of July, 1898; and the Society of the Army of the Cumberland agreed to pay to the plaintiff the sum of $32,500 when the statue was completed and delivered at the city of Washington, the sum of $2,500 having been paid at the time of the execution of the contract. It is then alleged that subsequent to the making ..of said contract and after the plaintiff had begun the performance thereof, “the defendants with full knowledge of said contract and that the plaintiff was engaged in the performance thereof, and of all the facts in any way connected therewith, or relating thereto, acquiesced therein, approved thereof and adopted and duly ratified said contract;” that the défendants never, at any time, erected a pedestal for said statue, but subsequent to July 1, 1898, the defendants permitted and requested the plaintiff to proceed with the work ■ and labor and expense of making said statue, and from time to time expressed satisfaction and approval of the work and progress which the plaintiff was doing and making thereon; and the.defendants subsequently ivaived the conditions of said contract requiring the completion and delivery of said statue on or before the 1st day of July, 1898, and extended the time for the plaintiff to complete and deliver the same for and until a reasonable period of time subsequent to January 3, 1907; that the plaintiff proceeded to model and construct with clay arid other materials and in substantial accordance with a design submitted to and accepted- by said the Society of the Army of the Cumberland, prior to making the said contract, an equestrian statue of General Sheridan, the design and execution of which were approved by the defendants, and the plaintiff had' the same substantially ready for enlargement and the. casting therefrom of a bronze statue, when about June 26, 1906, and January 3, 1907, the defendants gave notice to the plaintiff that they would not receive or accept said statue, or any statue of said General Sheridan made by the plaintiff, or pay for the same, and would not complete their said contract.; and the defendants did not at any time erect a pedestal for said statue, whereby the defendants abandoned the said contract and have ever since wholly failed to perform the same ; that the plaintiff was ready and willing to perform and complete the said contract on his part, but that the defendants violated the same to the plaintiff’s damage of $32,500, of which was paid $2,500, and the complaint demands judgment for the sum of . $32,500. The defendant Hodges answered by denying knowledge or information sufficient to form a belief as to the allegations of the complaint, and sets up the Statute of Limitations and other defenses. Upon motion of the defendant the court ordered a bill of particulars. The defendant is sued as a member of this society. It is not claimed that he was one of the committee who directly made the contract. From the nature of the case it would be unreasonable to compel the plaintiff to give the particulars of the relations of the defendants with each other. He .was employed by the chairman of the committee of the society who made a contract with him. The authority of that committee will have to be proved to a large extent by circumstantial evidence, and it does not seem reasonable to require a plaintiff to specify the evidence by which a member of such a society authorized its committee to make contracts on behalf of the society. The liability of the defendant must depend upon the nature of the association, whether from the object of the association and the authority given to its officers they had authority to make such a contract on behalf of the association which would either expressly or by implication bind its individual members.

The 1st clause of the order requires the. plaintiff to give the particulars of the date when and the manner in which Fullerton, who executed the contract, was authorized to act for the society. That would be a statement of evidence, and for that I do not think the plaintiff' should be required to give the particulars, and the same applies to the 2d and 3d clauses of the order. The 4th requires the plaintiff to specify the date when the design was submitted to the Society of the Army of the Cumberland; to what persons said design was submitted and at what date it was accepted. As to that I think the defendant is entitled to the particulars; in the 5tli clause the names of any defendant or defendants who permitted or requested the plaintiff to proceed with the work is required. The words “ permitted or ” should be stricken out, but the names of the defendants who requested the plaintiff to proceed with the work stated in the 6th, the names of the defendant or defendants who expressed satisfaction dr approval of the work should be stated ; in the Ytli the names of the defendant or defendants who furnished to the plaintiff articles to be used as models should be stated; in the 8th the names of the defendant or defendants who requested the plaintiff to make changes in the statue should be stated, in the 9th the names of the defendant or defendants who requested the plain' tiff to delay the work upon the statue ; in the 10th the plaintiff is required to specify the date when and the manner in which the said design was accepted by the said society. The 10th clause should not be allowed as the plaintiff should not be restricted in his proof as to the acceptance of the design by the society. In the 11th the plaintiff is required to specify the names of the defendant or defendants who approved of. the design or execution of the statue with the date. I think these particulars should be stated. • The 12th required that the names of the defendant or defendants who as is alleged in the amended complaint gave notice to the plaintiff that they would not receive or accept said statue, should be stated. In the 13th the plaintiff is required to give particulars of the names of the defendant or defendants who knew of, approved of or requested such changes. It is quite impossible for the plaintiff to furnish a statement of the knowledge of the defendants, and I think this clause of the order should be restricted to the names of the defendants who requested the changes in the statue. The words “ knew of, approved of or ” should be stricken out. The 14th requires a statement showing in what manner the statue differed from the model. 1 think that should be stricken out. That does not seem to be a statement that could be specified hi a bill of particulars. The plaintiff was also required to give the particulars of the-second cause of action, the names of the defendant or defendants who promised to pay for the work, but as the second cause of action alleged that all the defendants promised to pay, I do not see how that could be made more particular, and the 15th clause of the order is stricken out.

The order should be modified by striking- out the 1st, 2d, 3d, 10th, 14th and 15th clauses of the order, and the 5th and 13th clauses of the order modified as before stated, and as modified the order is affirmed, without costs.

Patterson, P. J., McLaughlin, Laughlin and Scott, JJ., concurred.

Order modified as directed in opinion, and as modified affirmed, without costs. Settle order on notice.

CASES REPORTED WITH BRIEF SYLLABI AND DECISIONS HANDED DOWN WITHOHT OPINION.  