
    Frederick Brandt, Respondent, v. The City of New York and National Surety Company, Defendants, Impleaded with Luke A. Burke, Appellant.
    
      Bill of particulars—not required of a defendant alleging that the plaintiff has failed to perform a contract alleged in the complaint to have been completely performed—defense of offset under the Code of Civil Procedure.
    
    Where an action is brought upon the theory that a contract has been completely performed and the defendant interposes an answer in which he denies the plaintiffs allegation of full performance, such defendant cannot be required to furnish a bill of particulars of the matters in which the plaintiff has failed to perform, for the reason that such knowledge is as much within the possession of the plaintiff as in the possession of the defendant and that before the plaintiff can recover he must prove full performance.
    
      Quiere, whether a defense by way of offset exists under the Code of Civil Procedure.
    Appeal by the defendant Luke A. Burke from 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 22d day of September, 1904, directing the said defendant to serve upon the plaintiff a bill of particulars.
    
      William F. Kimber, for the appellant.
    
      Gustav Lange, Jr., for the respondent.
   O’Brien, J.:

The cases of Reitmayer v. Crombie (94 App. Div. 303) and O'Rourke v. U. S. Mortgage & Trust Co. (95 id. 518) are authority for the proposition that where a recovery is sought upon the theory of a contract which has been performed, and wherein the answer denies full performance, a defendant is not required to give the particulars in which the plaintiff has failed to perform, and for the good and sufficient reason that such knowledge is as much within the possession of the plaintiff as of the defendant, and before the former can recover it will be necessary to prove full performance.

It will be noticed that, although the answer alleges that the defendant expended certain moneys for labor and materials in completing the contract and in the sale and delivery of certain flooring and planking, these are not pleaded as counterclaims, but are set up by way of offset, and no affirmative judgment is asked. They are undoubtedly good by way of defense, because to that extent they have a tendency to disprove the plaintiff’s allegation of performance, but it is questionable whether, under the present Code of Civil Procedure, a defense by way of offset any longer exists in our practice. It is unnecessary, however, to decide that question here, because the facts stated, which tend to show that the defendant expended a large sum of money in completing the contract and sold and delivered to the plaintiff a certain amount of planking and flooring in connection therewith, would support the defense of non-performance. With respect to such defense, we think that the plaintiff is entitled to the particulars, but that with respect to all the other allegations of the answer which negative the claim of performance by the plaintiff, the defendant should not be required to give the particulars.

The order should accordingly be modified to the extent indicated, by requiring the defendant to furnish only the particulars specified in the paragraphs numbered 5th and 9th in the order, and as so modified it should be affirmed, without costs.

Van Brunt, P. J., Ingraham, McLaughlin and Hatch, JJ., concurred.

Order modified as directed in opinion, and as modified affirmed, without costs.  