
    Charles P. Boland Company, Plaintiff, v. The Emma Willard School, Defendant.
    (Supreme Court, Albany Special Term,
    March, 1912.)
    Bill of particulars — when authorized — nonperformance of contract — • damages.
    Where, in an action upon a building contract, the pleadings show that each of the parties is' generally familiar with the claims of the other to such an extent that the defendant on the trial of the issues before a referee cannot be seriously surprised or embarrassed, defendant’s motion for a bill of -particulars will not be granted requiring plaintiff to furnish particulars with respect to' over forty different phases of the controversy.
    But where the contract provides that “ should the contractor he delayed in the prosecution or completion of the work by the act, neglect or default of the owners, of the architects, or of any other contractor employed by the owners upon the work * * * then the time herein fixed for the completion of the work shall be extended for a' period equivalent to the time lost by reason of any or all the causes' aforesaid, which extended period shall be determined and fixed by the architects; but no such allowance shall be made unless a claim therefor is presented in writing to the architects within forty-eight hours of the occurrence of such delay;” and the complaint, after alleging that plaintiff substantially performed the contract, alleges such delays as an excuse for nonperformance and the alleged delays are also included in plaintiff’s claim for damages, it .will be required to furnish a bill of particulars as to the same.
    Motion by defendant for a bill of particulars.
    Douglas & Gordon (D-Oady Herrick, of counsel), for • motion.
    Thomas S. Fagan (Wm. J7 Boche, of counsel), opposed.
   Chester, J.

The defendant moves for a bill of particulars pf the plaintiff’s claims. In the amended complaint three causes of action are alleged: First, for a balance claimed to be due from the defendant under a building contract for the erection by the plaintiff of a school building, a residence hall and a gymnasium for the defendant; second, for extra work and materials on such buildings, and, third, for damages for alleged delays caused to the plaintiff in the prosecution of the work by the alleged defaults of the defendant and its architects and by other contractors with the defendant.

Much of the defendant’s claim for particulars would, if granted to the extent asked, require the plaintiff to disclose its evidence. This it should not be required to do. Morrill v. Kazis, 8 App. Div. 304; Jewelers’ Mercantile Agency v. Jewelers’ Weekly Pub. Co., 66 Hun, 40; Taylor v. Security Mutual Life Ins. Co., 13 App. Div. 319. Hor should the plaintiff be required to state the elements which enter into its'claim for general damages. Commercial National Bank of Chicago v. Hand, 9 App. Div. 614; Bolognesi v. Hirzel, 58 id. 530; Badcliffe v. New York Cab Co., 134 id. 450.

The pleadings are very voluminous. The amended complaint sets forth the plaintiff’s claims with a considerable degree of particularity. The amended answer, besides alleging the various defenses in great detail, sets up eight different counterclaims against the plaintiff growing out of the work, each of which counterclaims is replied to at great length. These pleadings show that each party is generally familiar with the claims of the other with respect to 'the matters in controversy between them, yet the defendant in its notice of motion asks the court to require the plaintiff to furnish particulars with an unusual degree of minuteness with respect to forty-six different phases of the controversy, most of which as appears by the pleadings and the papers used upon the motion are wholly familiar to both parties. The particulars requested cover forty-two folios of the notice of motion.

The granting of the motion to its full extent would not in my opinion serve any good purpose or aid in promoting justice between the parties. The case is of such a nature that it will undoubtedly have to be tried before a referee and, if it is so tried, the defendant could not be seriously surprised or embarrassed upon the trial if its motion should be denied. Yet upon one important phase of the case I think it is fairly entitled to have the particulars of the plaintiff’s claim furnished and that such a course will serve to keep the proof upon that subject within more reasonable limits than if the trial proceeded without such particulars.

In the first cause of action it is alleged that the plaintiff substantially ” performed the contract and the plaintiff alleges as an excuse for non-performance delays caused by the architects, defendant’s contractors and employees, and these alleged delays are also included in the plaintiff’s claim for damages in its third cause of action. The contract contains a clause providing that “ should the contractor be delayed in the prosecution or completion of the work by the act, neglect or default of the owners, of the architects, or of any other contractor employed by the owners upon the work * * * then the time herein fixed for the completion. of the work shall be extended for a.period equivalent to the time lost by reason of any or all the causes aforesaid, which extended period shall be determined and fixed by the architects; but no such allowance shall be made unless a claim therefor is presented in writing to the architects within forty-eight hours of the occurrence of such delay.” Because of this provision and of the many causes for delay alleged in the complaint'I think the plaintiff should be required to give the defendant a bill of particulars stating the act, neglect or default of the owners, of the architects or of any contractor other than the plaintiff employed by the defendant upon the work, which the plaintiff claims delayed .it in the prosecution or completion of the work, stating at what time each alleged . delay was caused, its duration and the name of the person who, or corporation which, caused such delay and further stating the date when, and what, if any, claim or claims were presented in writing to the architects with respect-thereto.

The plaintiff has already furnished the defendant particulars with respect to the claims for extra work and materials, and I understood upon the argument that this branch of the motion was withdrawn from the .consideration of the cou’rt.

The defendant’s motion is granted to the extent above indicated, with ten dollars costs to abide the event.

Motion granted.  