
    Richard A. Saalfield, Plaintiff, v. William Bayard Cutting, Defendant.
    (Supreme Court, New York Special Term,
    December, 1898.)
    1. Bill of particulars — Denied where no answer has been served.
    Where no answer has been served, a motion by the defendant for a bill of particulars is premature; unless it is made apparent that it is necessary to enable him to frame his answer; but the application may be renewed after issue joined.
    
      2. Services — Inconsistent complaint made more definite and certain.
    A complaint, for services alleged to be worth a certain sum, and to have been rendered “ in and about the promoting and sale ” of certain real estate, which, after alleging that the plaintiff has performed all the conditions upon his part, states that the defendant prevented him from completing the negotiations to his damage in a sum named, must be made more definite and certain. It should show the precise agreement, and also whether the plaintiff intends to claim performance and the earning of an agreed compensation, or whether he merely asks damages because he was prevented from full performance. - ■
    The complaint alleged that defendant was owner of certain, real estate at Gowanus, borough of Bro oklyn, which ownership embraced privileges, franchises, chattels and grants of a ferry. That plaintiff at the special instance and request of defendant performed certain services in and about the promoting and sale of said property and franchises, for which services defendant promised to' pay plaintiff; that the plaintiff has performed all the conditions required of him in accordance with said subsequent and interested parties who were about to purchase the property; that defendant prevented plaintiff from further negotiating the sale of said property; that the fair and reasonable value of the services performed by plaintiff was $50,000; that by reason of the premises the plaintiff has been damaged in the sum of $52,000. Demands judgment for $52,000. Defendant moved for bill of particulars, and that complaint be made more definite and certain. The defendant had not answered.
    Weil, Wolf & Kramer, for plaintiff.
    Zabriskie, Burrill & Murray, for defendant.
   Scott, J.

The defendant has not yet answered, and, while a bill of particulars may be necessary to enable him to properly prepare his defense, it is not made apparent that it is necessary to enable him to frame an answer. The motion, in so far as it asks1 for a hill of particulars, is, therefore, premature, and must he denied. Washington Paper Co. v. West, 3 App. Div. 451; American Credit Indemnity Co. v. Bondy, 11 id. 329. It may he renewed after issue has been joined. So far as the defendant asks that the complaint be made more definite and certain, I think the application should be granted. It would be difficult to frame a complaint more indefinite and general in its terms than the one now under review. It alleges that the plaintiff at the special instance- and request of defendant did certain work and performed certain services in and about the promoting and sale of certain real estate. Just what is meant by promoting the real estate I do not understand. If plaintiff had alleged that his employment was to promote the sale it would be comprehensible, but such is not the allegation. It is that plaintiff was employed in and about the promoting and ” sale of the property. The complaint then alleges in one paragraph that the plaintiff performed all the' conditions required of him, and in another that" the defendant prevented him from completing the negotiations, so that it is not made clear whether the action is for compensation for a contract performed, or for damages by reason of defendant’s refusal to permit plaintiff to perform. So also it is alleged that the fair and reasonable value of the services rendered was a certain sum, and also that by reason of “ the premises,” including the refusal of the defendant to permit the plaintiff to fully earn his agreed compensation, the plaintiff was damaged ” in a like large sum. The complaint should be made more definite and certain by alleging, in substance, if not in exact terms, what the agreement as to services to be rendered by plaintiff was. It should further show clearly whether the plaintiff intends to' claim that he performed the required services, and, therefore, is entitled to the agreed compensation, or that he was prevented by defendant from fully performing his agreement, and is entitled to damages by reason of not having been permitted so to perform, and thus to earn such agreed compensation. The motion will be denied, on tibe ground that it is premature, so- far as it asks for a bill of particulars, and will be granted to- the extent indicated in this memorandum so far as it asks that the- complaint be made more definite and certain. No cost to either party.

Ordered accordingly.  