273 A.D. 814 | N.Y. App. Div. | 1948
In an action to recover damages for breach of warranty in the sale of goose down by defendant to plaintiff for manufacture of pillows, order limiting defendant’s demand for a bill of particulars to items 1, 2, 3, 4 and 14 of the demand, modified on the law and the facts, by providing that plaintiff be required, in addition, to furnish the particulars sought in item 5, except the date and place of manufacture of the pillows; item 9, except plaintiff shall not be required to furnish copies of agreements entered into between him and his customers, or to state the identity of the buyer or buyers to whom he resold pillows; and item 13. As so modified, the order, insofar as appealed from, is affirmed, with $10 costs and disbursements to appellant. The particulars are to be served within twenty days after the entry of the order hereon. The time of the alleged discovery of the breach of warranty and of notification thereof to defendant, together with the notice itself, sought in item 13, in relation to the time of the sale and warranty, are essential elements, to the cause of action. The matters in items 5 and 9, insofar as allowed herewith, cover the claims of special damage and may affect the computation. Names and addresses of customers with whom plaintiff had contracted for the sale of the pillows, which contracts plaintiff claims he could not perform because of defendant’s breach, may not be withheld on a claim that it would disclose evidence or witnesses. (Mussinan v. WiUner Wood Co., 69 App. Div. 448, 450; United States Paper Co. V. He Haven, 115 App. Div. 403, 404; Santoro V. Star & Crescent Milling Co., 244 App. Div. 750.) Lewis, P. J., Carswell, Johnston, Sneed and Wenzel, JJ., concur.