
    Paul Armstrong, Appellant, v. Henry Heide, Respondent.
    (Supreme Court, Appellate Term,
    November, 1904.)
    Bill of particulars—Not required as to the addresses of customers lost to a manufacturer because of a restrictive covenant made by him.
    In an action brought to recover damages for the breach of a contract by which the defendant agreed to accept during a period of six months one hundred thousand pails to be furnished by the plaintiff, an order was made requiring the plaintiff to serve a bill of particulars of his general damages which he alleged amounted to $1,000. This bill of particulars was served and stated that a portion of the general damages was the difference between the manufacturing cost and the contract price of the goods, and that the remaining portion thereof was caused by the plaintiff’s observance of a covenant contained in the contract restricting the plaintiff from making similar sales of goods to candy manufacturers in New York, Brooklyn and Philadelphia.
    
      Held, without determining whether the plaintiff should, in the first instance, have been required to furnish any particulars of his general damages, that the court should not, after he had furnished such particulars, require him to serve a further bill of particulars specifying the names and addresses of the different manufacturers in the three cities mentioned whose trade he had lost by reason of the restrictive covenant contained in the contract.
    
      Appeal by plaintiff from an order of the City Court of the city of New York, requiring plaintiff to serve upon defendant a further bill of particulars.
    J. P. Solomon (Simon Sultan, of counsel), for appellant.
    Amend & Amend (Alfred J. Amend and John E. Donnelly, of counsel), for respondent.
   Bischoff, J.

This action is brought to recover damages for the defendant’s breach of a contract to accept 100,000 pails to be furnished by the plaintiff, and general damages, in the sum of $1,000, are alleged.

By an order heretofore made, and not the subject of this appeal, the plaintiff was required to particularize his allegation of general damages, and a bill of particulars-was served, which stated a certain portion of the damages to be measured by the difference between the cost of manufacture and the contract price of the goods, the remaining portion being stated to be damages arising by reason of the plaintiff’s observance of a covenant in the agreement of sale, whereby he was restricted during the period for deliveries, from making any sales of similar goods to candy manufacturers in New York, Brooklyn and Philadelphia. It appears from the contract, which is annexed to the complaint, that the defendant had a period of six months within which to accept the goods called for by the contract; hence, that his default of performance would not arise until the expiration of that period for the purpose of relieving the plaintiff from the restrictive provision, and the damages indicated as arising from the restriction would, therefore, depend upon such proof as the plaintiff could produce showing the general value of the business which he was thus made to lose.

The order appealed from requires the plaintiff to specify the names and addresses of the different dealers in the three cities mentioned whose trade in these particular goods he thus lost, but, in our opinion, the requirement should not be made. This is not a case where the business lost could be particularized, for the reason that the restrictive covenant operated to prevent the solicitation of orders, and it would be impossible for the plaintiff to say that he had actually lost an order from every one of the candy manufacturers in these three cities, while to limit him to such instances of loss as he could accurately point out, would not fairly serve to measure his actual loss. If he may recover at all upon his claim of damage, the recovery cannot be based upon specific instances from the very nature of the case, and, without passing upon the question whether any particulars should have been ordered of these general damages, in the first instances, we conclude that the order before us should not have been granted in the exercise of the court’s sound discretion.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.

Freedman, P. J., and Fitzgerald, J., concur.

Order reversed, with ten dollars costs, and motion denied, with ten dollars costs.  