200 A.D. 494 | N.Y. App. Div. | 1922
This is an action to recover $100,000 damages for breach of a contract in writing made between the parties on the 12th of April, 1920. The contract is made part of the complaint. It is recited therein that the defendant desired to secure the services of the plaintiff to originate, compose and write a complete score and to orchestrate the same for a light opera of a popular type to be based upon a book and lyrics thereof to be furnished by defendant, and was desirous of acquiring the sole and exclusive right, license and privilege to produce and represent the operetta upon the stage throughout the world, and the plaintiff desired to perform such services and to grant such license and privilege. By the contract, so far as here material, the plaintiff agreed so to compose, originate and write a complete score and to orchestrate the same, and to deliver the completed score and orchestration within four months -after the delivery to him of the book, unless for unavoidable reasons he should be unable so to do, and in that event he agreed to deliver them within two additional months and in consideration of the agreements on the part of the defendant he also agreed to give the defendant a license and privilege as so desired; and the defendant agreed to deliver the book and lyrics on or before August 1, 1920, and to pay the plaintiff a royalty of three per cent of the gross weekly receipts from the performance and representations of the operetta based upon the weekly box office receipts, the payments to be accompanied by true and itemized statements of such receipts certified by the treasurer and countersigned by the manager of the respective theatres where the performances and representations were given, and to make such payments within five days of the end of the week during which a performance or representation was given, and to pay plaintiff as a bonus $10,000, as therein provided.
The answer admits the making of the contract and the delivery to the plaintiff of the book and lyrics as alleged, and puts in issue the other material allegations of the complaint, and alleges a counterclaim for $20,000, consisting of $10,000 alleged to have been paid as a bonus under the contract, and expenses and obligations incurred by the defendant. The reply admits the payment of the bonus, but puts in issue the other material allegations of the counterclaim.
The appellant insists that he should not be required to annex to the bill of particulars a copy offthe music for the lyrics which he tendered to the defendant or a copy of the complete score and
The object of a bill of particulars is to amplify a pleading, to limit proof and to prevent surprise to the adverse party on the trial by enabling him to know definitely the claim which he is called upon to meet (St. Albans Beef Co. v. Aldrich, 112 App. Div. 803; Lynch v. Dorsey, 98 id. 163; Alleghany Iron Co. v. Chesapeake & Ohio R. Co., 69 id. 87; Fruin-Bambrick Construction Co. v. Marks, 48 id. 51); and in furtherance of these objects the courts are quite liberal in requiring a party to furnish his adversary all necessary information to limit the scope of the evidence on the trial and to enable him to know definitely what he intends to claim under his pleading. If a claim be predicated on an agreement not set forth, the adverse party is entitled to have it stated in a bill of particulars whether the agreement is in writing, and if so, to have a copy thereof set forth, and if not in writing, to have the substance thereof stated (Knickerbocker Trust Co. v. Packard, 109 App. Div. 421); and where the claim is against a corporation, the name of the officer or agent with whom it will be claimed the agreement was made
The case at bar, however, does not fall within the ordinary rule, and on the position taken by the defendant in his answer, by which he denies that there was any tender of delivery of the music or score and orchestration, he needs no bill of particulars. The music, score and orchestration is the evidence on which the plaintiff relies to show performance on his part, and the defendant cannot be taken by surprise on the trial when this evidence is offered, for he has already been informed by the complaint that the plaintiff intends to show, as a basis for the right to recover damages, that his work and productions were in accordance and constituted a compliance with the contract, and, therefore, the case falls plainly within the rule that a party will not be required by a bill of particulars to disclose his evidence. (Barone v. O’Leary, 44 App. Div. 418; Slingerland v. Corwin, 105 id. 310; Pruyn v. Ecuadorian Assn., Ltd., 94 id. 195; Kellogg v. Griffiths, 124 id. 513.) It will be observed that the defendant does not contend that the nature of the plaintiff’s claim with respect to the music or score and orchestration is not set forth with sufficient particularity to enable him to meet it or that there is danger that he will be taken by surprise on the trial, but merely that he wishes to have experts
It follows that the order, in so far as appealed from, should be reversed, with ten dollars costs and disbursements, and. the order for the bill of particulars modified accordingly.
Clarke, P. J., Dowling, Page and Merrell, JJ., concur.
Order, so far as appealed from, reversed, with ten dollars costs and disbursements, and order for bill of particulars modified in accordance with opinion.