1 A.D. 74 | N.Y. App. Div. | 1896
The order denying the motion for a bill of particulars should be reversed. Under the allegations of the complaint and the issues raised by the answer, the defendant was entitled to the particulars of some of the matters stated in the complaint as constituting-plaintiffs’ cause of action, although not to the extent suggested in the notice of motion. The action is for the breach of a contract by which the defendant agreed to sell to the plaintiffs certain vehicles at fifty-five dollars apiece, and in consideration of the purchase by the plaintiffs the defendant stipulated to give to the plaintiffs the control of sales of vehicles manufactured by it in the cities of New York and Brooklyn, and Newark, Hoboken and Orange, New Jersey, and the defendant also agreed not to sell vehicles of a similar character in the places above named; and there was also a stipulation in the contract that neither of the parties would sell to others vehicles of the character referred to at a less price than seventy-five dollars each, less five per cent discount.
The breach claimed is that the defendant violated the contract by selling vehicles of the same character to divers persons at divers places at less than seventy-five dollars, and that, through agents other than the plaintiffs, such interdicted sales were made in the places above named; and the plaintiffs claim that, by reason of such violation, they were unable to make sales of the vehicles purchased by them at the agreed price, and that they have been prevented from making sales at all, to their damage.
It was claimed in opposition to the motion that a bill of particulars should not be allowed because the information sought to be obtained must be within the knowledge of the defendant. But that, under the circumstances of this action, is not a sufficient answer. The defendant should not be put to the necessity of compelling the attendance in court of each of its agents and of every person to whom it, through its agents, has sold vehicles, to be ready to meet the testimony of any one witness or more who may be put upon the stand to prove the breach of the contract alleged in the complaint. That would be imposing upon it a burden which it
On the other branch of the motion, namely, that relating to the particulars of the damage sustained by the plaintiffs, we think the motion should also have been granted. The allegation that by reason of the violation of the contract by the defendant, the plaintiffs have been prevented from selling the vehicles bought by them, is in the nature of special damage, and under such circumstances a bill of particulars of the damage is generally allowed. (Isaac v. Wilisch, 69 Hun, 339; Kraft v. Dingee, 38 id. 345 ; Justum v. Bricklayers, P. & S. Union, 78 id. 503.)
The order denying the motion for a bill of particulars is reversed and the motion granted to the extent above indicated, with ten dollars costs and disbursements, with leave to the plaintiffs to serve an additional bill of particulars as to the violation by the defendant of the contract at any time within ten days of the trial.
Van Brunt, P. J., Barrett, O’Brien and Ingraham, JJ., concurred.
Order reversed and motion granted, with ten dollars costs and disbursements, with leave to the plaintiffs to serve an additional bill of particulars as to the violation by defendant of the contract at any time within ten days of the trial.
