
    Thomas S. Bainbridge, Respondent, v. Albert Friedlander et al., Appellants.
    (City Court of New York—General Term,
    February, 1894.)
    An answer in an action on contract which denies the allegations of performance in the complaint, and then alleges that plaintiff did not perform and neglected, failed and refused to do so, is merely a specific denial of plaintiff’s allegation of performance, and a bill of particulars of the times and manner of such nonperformance should not be required.
    Appeal by defendants from order requiring them to furnish a bill of particulars of nonperformance by plaintiff of the contract he sues upon.
    
      F. A. Burnham, for respondent.
    
      Sjgiegelberg (& Wise, for appellants.
   Van Wyck, J.

The plaintiff’s alleged cause is for services rendered by him under a special agreement as salesman for defendants, and his complaint alleges: “That plaintiff has duly performed all the terms and conditions of said agreement upon his part to be done and performed,” while the defendants by answer plead : “ The defendants deny that the plaintiff duly performed all the terms and conditions of said agreement upon his part to be done and performed, but, on the contrary, allege that plaintiff did not perform all the terms and conditions of said agreement, and neglected, failed and refused to discharge his duties as traveling salesman for these defendants.” This plea of defendants is nothing more than a specific denial of plaintiff’s allegation of performance by him, and if so much of defendants’ plea as follows the word “ performed ” was stricken out, still plaintiff would be forced to make proof of his allegation of performance. Considering defendants’ plea, therefore, with reference to its legal effect, which is simply that of a denial, it cannot be properly regarded as setting up any such claim as to render it proper to require a bill.of particulars. See Goddard v. Pardee Medicine Co., 52 Hun, 85, which was followed and fully approved by this court in Strebell v. J. H. Furber Co., 2 Misc. Rep. 450; 51 N. Y. St. Repr. 163 ; and the case of Rafalsky v. Boehm, 1 Misc. Rep. 87; 20 N. Y. Supp. 374, does not in any way con flict with either of these decisions, for in the Rafalsky case the answer did not, by general or specific denial, put at issue plaintiff’s alleged performance, and in the opinion in that case it is suggested that defendant’s plea was insufficient and frivolous, but, as it was not so assailed, and plaintiff had only sought and secured at Special Term a bill of particulars of an affirmative plea in the answer, it would not be disturbed at General Term. But, as seen, the answer here specifically denies plaintiff’s alleged performance; hence, defendants, should not have been required to furnish a bill of particulars, of the times and manner of plaintiff’s nonperformance, and the order requiring them to do so should be reversed, with ten dollars costs.

Fitzsimons, J., concurs.

Order reversed, with ten dollars costs.  