
    Francis J. Kelly and Others, Composing the Firm of F. J. Kelly & Sons, Appellants, v. St. Michael’s Roman Catholic Church and Charles E. McDonnell, Bishop of the Roman Catholic Church for the Diocese of Brooklyn, Respondents.
    Second Department,
    February 28, 1908.
    Pleading—action on building contract—bill of particulars of counterclaim, ordered.
    When the defendant in an action to recover under a building contract alleged to have been fully performed, denies that the plaintiff performed or that it is liable for the value of extra work claimed by the plaintiff, and as a separate defense seeks to offset or counterclaim damages caused by the plaintiff’s failure to complete his contract, the plaintiff, although not entitled to particulars for the purpose of limiting the defendant upon the issue as to the performance of the contract, is entitled to particulars of the damages alleged to have been sustained by reason of the alleged non-performance. •
    Appeal by the plaintiffs, Francis J. Kelly and others, composing the firm, etc., 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 29th day of July, 1907, denying the plaintiffs’ motion for a bill of particulars of the counterclaim contained in the defendants’ answer.
    
      Robert II. Roy, for the appellants. ' '
    • James W. Treadwell [ Joseph F. Keany with him on the brief], for the respondents.
   Woodward, J.:

The plaintiffs sue on two causes of action. The first is for a' balance of $2,286.56, alleged to be due under the terms of a building contract with the defendant, St. Michael’s Roman Catholic church, through its rector, and the second is for $10,765.55, alleged to be due for extras incidental to the work, an itemized statement accompanying the complaint showing what' these alleged extras consisted of. The complaint alleges that the plaintiffs fully performed the terms of the contract on their part, and that they furnished the labor, materials, etc.,' for the extras at the special instance and request of the defendants. The defendants deny that the plaintiffs have fully performed their contract and deny owing them anything, either under the contract or upon the extra work alleged to have been performed in connection therewith. The defendants likewise set up a separate defense, in the nature of an .offset or counterclaim, and claim damages to the extent of $15,000 by reason of the failure of the plaintiffs to complete their contract. This counterclaim,. while alleging that the contract has not been per-' formed, that the work has never been completed, and that there was a failure to provide proper materials, etc., fails entirely to apprise the plaintiffs of the particulars in which they have failed to comply with the terms and conditions of their contract. Confronted by this pleading the plaintiffs moved the court at Special Term for an order directing the defendants to furnish a bill of particulars as to the matters • alleged in the counterclaim. This the court has denied, without opinion, and the plaintiffs appeal from the order denying this motion.

We are of the opinion that the plaintiffs are entitled to a bill of particulars, not for the purpose of limiting the defendants upon •the issue, as to the performance of the contract, but as to the damages alleged to have be.en sustained by the defendants by reason of the non-performance of the contract. There is a distinct issue between the parties; the plaintiffs allege full perform: anee of their contract. The defendants deny this, and the plaintiffs, to recover, must prove full performance, just as they have alleged, and upon this issue the' plaintiffs have no right to limit the defendants by any bill of particulars. The defendants have a clear right to disprove anything which the plaintiffs are bound to prove to make out their cause of action. Of course, if the plaintiffs establish full performance, there is an end of the case. But in the event of the jury finding that the plaintiffs have not performed their contract, then there is a question as to the damages which the defendants have sufered by reason of the non-performance of the contract or by reason of the inferiority of the labor or materials furnished, and the case is exactly as though the defendants had paid the plaintiffs for the work and had reserved a right of action for the damages sustained by reason of non-performance or imperfect performance. In such a case a contract for a building to cost $142,677,. involving great detail of labor and variety of materials, would naturally demand a bill of particulars as to the matters in which the defendants had failed, where the allegations of the complaint were entirely general, and that is the situation here. Assuming that the plaintiffs fail to establish their cause of action; that they' have not complied with their contract, their complaint must be dismissed. They are not to recover anything in this action for a claim aggregating more than $12,000. Are they then to be subjected to the risk of. being. compelled to pay a large amount in damages because they have failed to prepare themselves to defend the many details in which the defendants may claim that the work does not come up to the standard, or that the materials are inferior to what were contemplated? We think this is not the rule in such cases. The court in Hopper v. Weber (84 App. Div. 266)’ held that where the plaintiffs alleged performance, which was denied, and a counterclaim was made for damages for non-performance, the plaintiffs were entitled to a bill of particulars as to the portions of the contract which the defendants claimed the plaintiffs had neglected to perform, and also specifying the particulars of damages resulting from the alleged breach, and we find no authority holding to the contrary. Indeed, all of the cases tó which our attention 4s called recognize the right of a plaintiff to - have a bill of particulars under the circumstances here disclosed, where that question is touched upon at all..

The order appealed from should be reversed. -■■■

' J'enks, Hooker, Gaynor and Rich, J.J., concurred.

Order reversed, with ten dollars costs and disbursements,.’and .motion granted.  