
    James Mason, Plaintiff and Respondent, v. Zebedee Ring, (Administrator and in his own right,) Defendant and Appellant.
    1. In an action of an equitable nature, where a judgment in favor of the plaintiff had been so far opened by the Court of Appeals as to allow the defendant, an administrator, to establish a cross claim for services rendered by his intestate during a number of years, the Court below ordered a reference to examine and report on such claim, and at the same time required the defendant to furnish a bill of particulars of the services, specifying their nature and character and the respective amounts claimed, and, as far as practicable, the dates and amount of each item of such service.
    
      Held, that this order was not intended to require such a bill as is demand-able of right, in actions of a legal nature, but rather to limit the defendant’s claim to the matters contemplated by the decision of the appellate Court, or, if any further claim was to be made, to require as particular a statement of it as the defendant could furnish.
    2. Hence, although the services were not rendered under a general employment at an annual salary, such order is satisfied by a general statement of a claim for services as general agent and manager, in taking charge of the affairs and property of the plaintiff for a specified number of years, at a specified rate per annum, if the defendant makes oath that he cannot give items more minutely.
    3. If the defendant would claim to recover moneys paid by the'intestate for the expenses of agents other than himself, such payments should be stated separately from his claim for services.
    4. In such a case, an order for a further bill of particulars should not require more than the original order, and in so far as it does, it should be modified * on appeal.
    (Before Bosworth, Ch. J., Moncrief, Robertson, Barbour and Monell, J. J.)
    Heard, November 8;
    decided, December 27, 1862.
    Appeal from an order requiring a further bill of particulars. In this action the plaintiff sought to set aside a conveyance of laud which he had made to James J. Eing, deceased, of whose estate the defendant, Zebedee Eing, was the administrator, and which was intended as a compensation for the intestate’s services and disbursements as attorney and counsel and otherwise, during a period of about thirteen years.
    Upon añ appeal to the Court of Appeals, that Court held that the conveyance should be set aside, but that, nevertheless, the defendant was entitled to recover compensation for the intestate’s services, and opened the judgment appealed from for the purpose of having the value of the services, other than professional, ascertained and allowed to the defendant, and for this purpose directed the Court below to proceed by reference or otherwise.
    On the 29th of November, 1861, the plaintiff applied to this Court, upon the remittitur and affidavits, and obtained an order referring it to Henry Nicoll, Esq., to inquire and report on such claim. The order of reference contained a further provision “ that the defendant, within thirty days after the entry of this order, serve upon the plaintiff a bill of particulars of such alleged services, duly verified, specifying the nature and character thereof, and the amounts claimed therefor respectively, and as far as practicable the dates and amount of each item of such service.”
    Under this order the defendant served a bill of particulars in which the items of his claim were stated as follows:
    “ Services by James J. Jing, as the general agent and manager of the plaintiff, in attending to and taking charge of the affairs and "property of the plaintiff from July, 1844, to November, 1855, eleven years and four months, at $5,000 per annum, $56,666.66.
    “ Commissions upon cash received by J. J. Jing, for plaintiff, as found by the Judge on the trial, $168,225.66, at 5 per cent, $8,411.28.'
    “ Services by J. J. Jing, in attendance before the Legislature at the several sessions of 1850 and 1851, for several weeks at each session, to obtain a repeal or modification of statutes affecting the plaintiff’s interests, at the instance of the plaintiff, estimated, including expenses paid for himself and other agents, as worth $10,000.”
    The verification of this bill of particulars stated that it was made up as far as it was practicable, and as fully as deponent was able to state the same. ' *
    The plaintiff then moved at Special Term for an order requiring that the defendant make the bill more definite. The defendant opposed this motion by an affidavit to the effect that the bill delivered contained, as far as practicable, the dates and amounts of each item ; that he had never seen an^ accounts between the intestate and the plaintiff, except such as had been given, in evidence on the trial, and that the services referred to in the bill of .particulars were rendered on an understanding that the compensation was to be contingent upon success in the services; that the intestate did perform the services, but the defendant was utterly unable to give particulars of the specific services ; that during twelve or thirteen years the intestate devoted all jus time to the plaintiff’s affairs, and, as deponent believed, made no memorandum of particular services, by reason of his confidence in the plaintiff; and that deponent was unable to give a more particular account than was contained in the bill of particulars.
    The Court granted an order, which was dated the 23d of February, 1862, requiring the defendant to make the first item more definite by delivering a bill “stating whether he relies on a general employment at a yearly salary, and if he does, by stating therein the time at which, and period for which, the said James J. Ring was so employed; also the precise nature and character of that employment, its terms, the purposes, if any, for which the said James J. Ring was so employed, and the special services, if any, that under such general employment he was to render; and it is further ordered that if the said defendant seeks to recover under such first item for any particular services %lone, not part of any general employment, in such further bill of particulars, he state separately the dates, items, and values of such particular services, and each of them, as the defendant seeks to recover for, or purposes to prove under, the said first itemand also requiring him to make the third item more definite “by stating therein what part of the said item of $10,000 in the said third item mentioned, is for expenses paid, and what such expenses were, and how incurred, and to whom, when and how paid, and what part is claimed as compensation for services, and the specific nature and character of these services, and whether a general employment, and the nature thereof, or, if not, the particulars of such services, and, so far as practicable, the dates and values thereof.”
    From this order the defendant took the present appeal.
    
      Wm. Curtis Noyes, for the defendant, appellant.
    
      H. A. Cram, for the plaintiff, respondent.
   By the Court—Bosworth, Ch. J.

The order of the 29th of November, 1861, not having been appealed from by either party, it is just, for all the purposes of this appeal, to regard it as one with which it is the duty of the defendant to comply. And it is also just to hold, that a compliance with it is all that the plaintiff has a right to demand.

That requires the defendant to furnish “ a bill of particulars of such alleged services, * * specifying the nature and character thereof, and the amounts claimed therefor, respectively, and, as far as practicable, the dates and amount of each item of such service.”

The defendant does not claim that the services were rendered under “ a general employment at a yearly salary,” but, on the contrary, alleges, and the case shows, that they were not.

The order appealed from requires the defendant, if he claims to recover, under the first item of the bill of particulars already furnished, for any particular service not rendered under a general employment at a yearly salary, “ to state separately (on a further bill of particulars) the dates, items and values of such particular services, and each of them, as the defendant seeks to recover for, or purposes to prove, under the said first item.”

That first item reads thus, viz.: “ Services by James J. Ring, as the general agent and manager of the plaintiff in attending to, and taking charge of the affairs and property of the plaintiff from July, 1844, to November, 1855, 11 years and 4 months, at $5,000 per annum, $56,-666.66.

This states the nature or particular character of the services for which the defendant claims to recover, and the amounts claimed therefor.

It, therefore, is a literal compliance with the terms of the order of the 29th of November, 1861, unless it is practicable for the defendant to itemize the services more minutely, than by a division of them into periods of á year each.

The defendant swears that it is not, and states why it is not; and unless his sworn statement in regard thereto is false on its face, it should be accepted as true.

In such an action as this, it was not the practice of the Court to assume authority to order a bill of particulars, prior to the amendment of § 158 of the Code, made in 1851. (Laws of 1851, App., p. 56, § 158; Cornell v. Bostwick, 3 Paige, 160.)

The order of the 29th of November, 1861, should be construed with reference to the practice in such cases, and especially with reference to the views of the Judges of the Court of Appeals, as expressed in their written opinions, which state the inquiry this Court was to make on the cause being remitted to it.

Judge Selden’s opinion contains these passages, viz.: It is contended on the part of the appellant, that the intestate was entitled to a compensation for his services, as the general managing agent of the plaintiff, for a long period.”

“ The Judge has found that from the year 1844 to 1856, the intestate took charge of all affairs and property of the said plaintiff, paid his hills, managed his property, and supplied him with money from time to time.” * *

“ There seems to be no just reason why he or his representatives should not receive a reasonable allowance for his twelve years service.”

And thereupon the Court of App'eals directed the judgment to be opened, to inquire iuto the value of the intestate’s services, other than professional.

The first item of the bill of particulars states the services as thus described in Judge Selden’s opinion; and it would seem that there could be no doubt what matters the Court of Appeals intended should be investigated; nor any as to the nature of the defendant’s claim.

Looking at the order of November 29, 1861, with reference to Judge Selden’s opinion, it would seem to have been framed with a view to compel the defendant to limit his claim to the matters which that opinion specifies, or if any further claim was to be made, to require as particular a statement of it as the defendant could furnish, and at/all events a statement of its nature and character, and of the amount claimed.

But it Avas not intended to require the defendant to furnish such a bill as is demandable of right, in actions at law, at the peril, in case of failure from inability to do so, of being precluded from all inquiry into the matters, which the cause was remitted for the especial purpose of having examined, after it had been adjudged that the defendant was of right entitled to be compensated therefor; and for not compensating for which, the judgment of this Court was reversed. 1

The order appealed from goes further than the order of Nov. 29, 1861, and requires a specification of the date, item, and value of each service, as the defendant seeks to recover for it, or purposes to prove it, and assumes that it is an insufficient bill of particulars, where a party seeks to recover a yearly compensation for services claimed to have occupied the substance of the time of each year, and to have been continued through a period of twelve years.

This is exacted, in order to make a compliance with an order which only requires a statement of the nature and character of the services, and the amounts claimed therefor, with such a specification of items, and 'dates, and amounts of the services respectively, as it was practicable to make.

And it is exacted in disregard of the defendant’s affidavit, that it is out of his power, for reasons which he states, to give further particulars.

I think the order appealed from goes much further than that of November, 29th, 1861, and that the defendant has complied with the latter, according to its spirit and just interpretation, when considered in connection with his affidavit, and the opinion referred to.

The bill of particulars furnished is valuable to the plaintiff, in that it limits the defendant’s claim (so far as this item is concerned,) to the matter expressly within the contemplation and judgment of the Court of Appeals in opening the judgment, whereas the order of reference is sufficiently comprehensive to admit proof of any service not professional, no matter to what it may relate.

Although the order of reference is not in terms so limited, yet the opinion of the Court of Appeals shows, that the judgment was opened for the express purpose of enabling the defendant to prove and obtain compensation for about twelve years of services by the intestate, as managing agent for the plaintiff. That such object may not be defeated, or its attainment obstructed, the first item of the bill of particulars should be regarded as a compliance with the order of November 29, 1861, which, in respect to that particular matter, should not be construed as requiring any more of particularity as to items than is practicable ; the fact of practicability being tested by the nature of the claim itself, the facts and circumstances of the case, and the uncontradicted affidavit of the defendant.

The order appealed from does not call for anything further, in regard to the second item in the bill of particulars.

In respect to the third item, it may be justly said, that the bill furnished does not comply with the order of November 29, 1861. It does not state what sum is claimed for the services rendered in 1850, or in 1851, or in both years, as an aggregate.

The alleged services and disbursements are estimated in gross at $10,000.

The defendant can state how much is claimed for the services rendered in 1850, and in 1851, separately, and the nature of the services, and he can state what he claims for disbursements. The defendant’s affidavit, in its denial of ability “ to give a more particular account of such services, (the services of which it speaks,) is not so pointed that it should be regarded as referring to the services covered by this third item.

It is not clear that the order of reference, as entered, will permit an inquiry whether the intestate expended money by authority of the plaintiff, in paying the expenses of agents other than himself. The order directs an inquiry whether the intestate “ had * * a just claim against the plaintiff for services not professional, * * and the amount of such claim,” and that is the only inquiry which it, in terms, authorizes.

If the intestate rendered special services in 1850 and 1851 for the plaintiff, at Albany, for which compensation should be made, possibly his necessary expenses in going, staying there, and returning, may be estimated under a claim for the services. But it is not apparent that money disbursed to defray expenses of other agents, or to promote the objects of the agency, and not forming part of his necessary personal expenses, can be.

I think the order appealed from should be modified, by requiring such particulars to be furnished of the services covered by the third item, as the order of November 29, 1861, requires, and that, in so far as it demands further particulars in respect to the first item, it should be reversed.

Ordered accordingly.  