
    Loeser Kalina, Respondent, v. The American Label Company, Appellant.
    First Department,
    November 3, 1911.
    Pleading —bill of particulars — action for conversion — date of demand — items of damage — statement as to whether demand was in writing.
    Where in an action for conversion.of goods the plaintiff alleges that he duly demanded of. the defendant the return thereof on repeated occasions between certain specified dates and specifically upon other specified' dates, the defendant is not entitled to a bill of particulars of the dates' of the demand as they are sufficiently alleged.
    •Where, in such action the plaintiff seeks only to recover the value of the chattel without damages for the retention thereof, the defendant is not . entitled to a bill of particulars of the items of damage.
    But where the defendant in such action denies the demand and claims to be without knowledge thereof, it is entitled to a bill of particulars stating whether or no the demand was in writing, and, if so, to have a copy of it.
    Appeal by the- defendant, The American Label Company, from so much of an order of the Supreme Court, made at the New York Special Term and entered in the office of the. clerk of the county of New York on the 7th day of August, 1911, as denies in part the defendant’s motion for a bill of particulars.'
    
      Harrison B. Weil, for the appellant.
    
      Abraham P. Wilkes, for the respondent.
   Laughlin, J.:

The action is for the.conversion of “about 400 engravings upon stones, progressive proofs of certain dies and plates,” used; in and about printing and lithographing, which it is .alleged plaintiff delivered to the defendant on the agreement that they were to be returned on demand.

The order grants the motion to the extent of requiring a bill of particulars of the names of the person or persons upon whom the demand for the .return of the chattels is alleged to have been- made, but in other respects the motion was denied. The notice of appeal specifies that the appeal is taken from the-order in so far as it denies the motion for a bill of particulars giving the particular dates, day, month and year, when it is claimed a demand for the return of the chattels was made, and if the demand was in writing, a copy thereof, and also an itemized statement of the damages claimed by the plaintiff;

It is alleged in the amended complaint that after the delivery of the chattels and prior to the commencement of the action, the plaintiff duly demanded of the defendant the return thereof on repeated occasions between the 10th day of May, 1909, and the 10th day of September, 1910, and specifically on or about May. 10th, May 30th, May 34th, May 35th and the early part of June, 1909, and also on or about September 1st, 1910.” We are of opinion that the defendant is not entitled to have the date of the demand more definitely specified in a bill of particulars. The plaintiff only seeks to recover the value of the chattels, and not damages for the retention thereof, and, therefore, the defendant is not entitled to a bill of particulars of the items of the damages. .

The defendant is a- corporation, and it puts in issue the allegations of the complaint with respect to the demand and claims to be without knowledge concerning the same. In these circumstances, we are of opinion that the defendant was entitled to have the bill of particulars show whether or not the demand for a return of the chattels was in writing, and if so, to have a copy thereof set forth in the bill of particulars.

. The order should, therefore, be modified by inserting a provision requiring the plaintiff to state in his bill of particulars whether or not the demand was in writing, and if so, to. set forth a copy thereof, and as thus modified affirmed, without costs. ' "

■Ingraham, P. J., Clarke, Scott and Dowling, JJ., concurred.

Order modified as stated in opinion, and as modified affirmed, without costs.Order to be settled on notice.  