200 F. 973 | S.D.N.Y. | 1912
This is a motion by the plaintiffs to resettle an order requiring them to furnish a bill of particulars to the Metropolitan Tobacco Company, one of the defendants. January 27, 1912, the court entered the following order:
“Ordered, that within ten (10) days after the service of a copy of this order upon the plaintiffs, or plaintiffs’ attorney, the plaintiffs serve upon the attorneys for the defendant Metropolitan Tobacco Company, at their office, a verified bill of particulars showing the amount and kind of damage the plaintiffs have suffered since the year 1905, and how the same resulted from the conspiracy alleged in the complaint.”
March 11th the plaintiffs furnished a bill claiming $25,000 for loss of good will, sums aggregating over $75,000 for loss of profits in the years from 1905 to 1911, inclusive, enhanced prices paid for goods during the same years, aggregating over $34,000, and additional expenses incurred during the same period, aggregating over $20,000, together with a statement as to the way in which these losses were connected with the conspiracy complained of.
March 18th the court ordered a further bill of particulars as follows: • .
“Ordered, that the plaintiffs be, and they hereby are, x>recluded from introducing at the trial of this action any evidence concerning their damages, sustained since 1905, other than the items set forth in the further bill of particulars, heretofore furnished and dated March 11, 1912, and that in proving such damages they be precluded from computing the same by any other method than the one set forth in said further bill of particulars; and it is
“Further" ordered, that the plaintiffs be, and they hereby are, directed to serve upon the attorneys for the defendant Metropolitan Tobacco Company, within ten (10) days after service of a copy of this-order, with notice ol” entry thereof, a second further verified bill of particulars, itemizing and particularizing the additional expenses necessarily incurred by plaintiffs" for each of the following purposes, namely: In employing (1) extra salesmen; (2) extra buyers; (3) extra drivers; (4) extra horses; (5) extra wagons; and (6) in granting extra inducements, presents, premiums, and gratuities.”
The plaintiffs apply to resettle this order, by striking out the first paragraph, which it will be noted incorporates the similar provision contained in the order of January 27th.
It is said that the foregoing order may be understood by the trial judge to prevent the plaintiffs from proving damages sustained before 1905. It does not, because the defendant Metropolitan Tobacco Company asked only for particulars of damage occurring after that date, apparently because it thought earlier damages would be barred by the statute of limitations.
It is also said that the order may preclude the plaintiffs from offering evidence of damages sustained between the beginning of the suit and the trial. Assuming that they have sustained damages which, could be proved down to the time of trial, in accordance with the case of Park & Sons Co. v. Hubbard, 198 N. Y. 136, 91 N. E. 261, it will be their own fault if they are not allowed to do so, because in their bill of particulars they only alleged damages sustained down to
■ Bills of particulars have grown from very small and technical be-.ginings into most important instruments of justice. Originally they were confined to accounts, then extended to contracts generally, and finally to torts. Section 531 of the Code of Civil Procedure authorizes courts to grant them “in any case.” While they are not intended to advise a party of his adversary’s evidence or theory, they will be required, even if that is the effect, in cases where justice necessitates it. For instance, in actions for damages caused by the negligence of servants, the plaintiff is constantly required to name the servant alleged to have been negligent, and to state the particulars in which he was negligent. Likewise, where the master’s works, ways, or machinery are complained of as defective, the plaintiff will be required to state the defects and the way in which they caused his injuries. One of the main purposes is to prevent surprise, and to advise the party of what he is to meet at the trial. Dwyer v. Slattery, 118 App. Div. 345, 103 N. Y. Supp. 433; Bjork v. Post, 125 App. Div. 813, 110 N. Y. Supp. 206. Very interesting cases, more applicable to the one now under consideration, are Shaw v. Stone, 124 App. Div. 624, 109 N. Y. Supp. 146; Messer v. Aaron, 101 App. Div. 169, 91 N. Y. Supp. 921; Mayor v. Marrener, 49 How. Prac. (N. Y.) 36; Leigh v. Atwater, 2 Abb. N. C. (N. Y.) 419.
The claim in this case is unusual. It is for damages in a very large sum, which, if proved, will be trebled. The damages claimed are not general, such as are necessarily to be expected, but special. There is no necessary connection between the plaintiffs’ loss of good will, of
The motion is denied.