48 N.Y.S. 663 | N.Y. App. Div. | 1897
This action is for the breach of a .covenant in the lease of a theatre in San Francisco. The plaintiffs are the lessors, and the defendant the lessee. The premises are known as the “ California Hotel and Theater Building.” The hotel and theatre are in one. building, and are mutually dependent. The plaintiffs conduct the hotel; the defendant the theatre. One of the defendant’s covenants is to maintain the theatre during the term of the lease, and
Another.of the defendant’s covenants is to use all proper care and precaution for the preservation and protection of the personal property in the theatre, and to keep the same, as well as the ¡theatre itself, in repair at his own cost. The breach of this covenant is also alleged, and for that breach the plaintiffs claim $5,000 damages.
TJpon the defendant’s demand, the plaintiffs furnished what' they claim to .he a proper bill of particulars of the matters thus sét out in the' complaint. It is quite plain, however, upon an inspection of this bill, that it is nothing more than a repetition in another, though somewhat ampler, form of the allegations of the complaint. It, in fact, entirely fails to apprise the defendant of the concrete charges made against him. It will not do for the plaintiffs to confine their bill of particulars to a general statement that the defendant, 'during the entire demised term, or during the greater part thereof, failed to keep the premises open and in use as a strictly first-class theatre; nor will it suffice, in such a bill, to say that the damages, general and special, were in the one instance $100,000, and in the other $5,000. The defendant has a. legal right to know just what he will be required to meet upon the trial. The burden cannot, by mere generalization, be put upon him of accounting for every day of his occupancy. The plaintiffs should, in all fairness, specify the play or plays which they intend to question by proof upon the trial, and the date of each production. Yague and general statements will not suffice. The defendant has a right to know what the particular attractions are to which the plaintiffs take exception. Thus, and thus alone, can he come to trial prepared to' justify his performances and to meet the real charges made against him. It is no answer to his demand that he knows what performances he gave. That is true, but, as already observed, he should not, upon a mere general!
The plaintiffs should also be required to specify the precise dates when they claim that the theatre was actually closed in violation of the covenant of the lease.
They should also give the items of the special damage averred, namely, first, the amount in which the patronage of their hotel has been decreased; second, the amount lost through the diminution of guests; third, to what pecuniary extent the hotel business has suffered ; fowrth, the amount claimed for loss of its reputation and good-will; fifth, how much the value of their estate therein has been impaired and lessened.
The defendant is also entitled to the particulars of the charge of failure to protect and preserve the personal property, and to keep this property and the theatre in repair. Again, it is no answer to this demand that-the defendant knows what he has done or omitted to do in the premises. Undoubtedly he knows what he has done or omitted to do, but still he is ignorant of the particular omission
. The order should, therefore, be reversed, with ten dollars costs and disbursements of the appeal, and the defendant’s motion for a further bill of particulars granted, without costs, to the extent indicated in this opinion.
Van Brunt, P. J,, Rumset, O’Beien and Ingraham, JJ., concurred! x .
Order reversed, with ten dollars costs and disbursements of appeal, and defendant’s motion for further bill of particulars granted, without costs, to the extent indicated in opinion.