30 N.Y.S. 1029 | N.Y. Sup. Ct. | 1894
The appeal is from the entire order, and from each» and every part thereof, but the appellants, conceding the validity of the order in other respects, complain of that portion which requires-the bill of particulars to state the dates upon which the requests or demands mentioned in the eighth and ninth paragraphs of their answer, respectively, were made. The action is the ordinary one for goods sold and delivered. In addition to a denial, the answer sets-up a counterclaim,—that the parties entered into a contract for 2,000 pieces of goods, to be delivered within a year, of which the goods sued for were a part; that the goods were to be delivered at the rate of 500 pieces every three months, and in larger quantities if desired; that the plaintiff did not make the deliveries as contracted for, although the defendants requested and desired such delivery, and that plaintiff has wholly failed to deliver the balance, “although these defendants have many times demanded that the plaintiff should forthwith deliver the same to the defendants.” The reply, after denying that this was a proper construction of the contract, admits that defendants sent orders for some of the goods during the-first three months, but after the receipt of said orders continually shifted and changed the order, so that plaintiff was unable to have all of the same ready for sale and delivery to the defendants.
The question presented, therefore, is whether it was proper to require the defendants to state the dates upon which the requests or demands mentioned in the answer were respectively made. Upon the-issue thus raised it is conceded that requests or orders were made, but these are sought to be avoided upon the ground that they were-so changeable and shifting that the plaintiff was unable to get all of the goods ready in time to deliver. It is therefore incumbent upon the plaintiff to show that the requests or orders were changeable and shifting, no question arising but that they were given; and! the only purpose that could be served by requiring of the defendants-a statement of the dates would be to exclude requests and demands at times other than those given in the bill of particulars. The primary purpose of a bill of particulars is to give information or such details of a claim presented against another as justice requires. When ordered, and not given, it excludes evidence, and upon a trial confines the party to the particulars which he is thus required to give; and this is done to prevent surprise or injustice upon the trial. Here the-information sought as to the dates when these demands were made of plaintiff are as much within the latter’s knowledge as that of the defendants, and the object, therefore, cannot be to furnish information, but to limit the defendants in the scope of their proof in meeting, the affirmative issue raised by the plaintiff,—that the orders were so changeable and shifting that the plaintiff could not get the goods ready so as to complete the whole contract. It is not the office of a biU of particulars to limit the evidence which "a party may be able
