Otto Huber Brewery, Respondent, v. Charles A. Sieke, Appellant

Otto Huber Brewery, Respondent, v. Charles A. Sieke, Appellant. Second Department, October 20, 1911. Pleading — bill of particulars — demand — order — ambiguity — general damages. A bill of particulars may be ordered not only as to counterclaims, but also as to defenses. Where new matter set up in an answer may be either a counterclaim or an affirmative defense, it will be treated as a defense only, unless characterized as a counterclaim. • Where a demand for a bill of particulars stated that the bill was required by defendant’s alleged counterclaim and then specified five subjects upon which particulars were demanded, only two of which related to matters treated as a counterclaim, the specific statement of the items concerning which particulars were sought controls the general statement that they were included in the counterclaim, and defendant could not have been misled as to the information desired. Although the notice of motion specified that the relief to be asked for was a bill of particulars in compliance with a demand, this does not render ambiguous the terms of the order which specified the five subjects as to which particulars were to be furnished; but did not characterize them as being matters set up in the counterclaim. Where damages resulting from a breach of contract are general and not special, it is improper to compel the party claiming them to specify the particulars thereof. Where, in an action' to recover the deficiency due after the foreclosure of a chattel mortgage, defendant as a counterclaim alleges damages for breach of a contract by plaintiff to procure him a lease, and further alleges that, relying on the contract, defendant entered upon the premises and spent $2,500 for repairs, etc., and that by reason of the breach' he was damaged in the sum of"$6,000, it is improper to direct defendant ; to give items making up the $6,000 .damages, -the order having" aheady provided for particulars as to the items making up the $2,500 spent for repairs. The damages alleged beyond the $2,500 spent" for repairs are general only. Appeal" by the defendant, Charles A. Sieke, from an order of the Supreme Court, made at The Kings County Special Term and entered’ in the office of the clerk of the county of Kings on the 13th day of June, 1911, granting the plaintiff’s motion for a bill of particulars. John G. Snyder, for the appellant. Frank Obernier, for the respondent. [MAJORITY — Burr, J.:] Burr, J.: This appeal is from an order requiring the service of a bill of particulars as to certain matters-set up in defendant’s answer. The complaint alleges that on September 26, 1905, defendant made and delivered to plaintiff a chattel mortgage to secure payment of the sum of $6,500, and that this mortgage was subsóquently duly foreclosed, resulting in a deficiency of $4,071.89, for which "sum judgment is demanded. The answer sets up several so-called defenses pleaded only as such, and in addition a counterclaim to the effect that on September 25, 1910 (sic), as an inducement to defendant to enter into the “saloon and café business at 1407 Broadway, Borough of Brooklyn,” plaintiff promised and agreed to procure for him a lease of (for ?) five years from September 1, 1910, at an' agreed rental of $166.33 per month. By the. 8th paragraph of said answer it is further alleged that, relying upon said promises and agreements, defendant “entered into said business and spent the sum of Twenty-five hundred dollars ($25Q0) in' repairs, fittings and preparation of the conduct of such business for a period of ten years from, such date; and further relying upon such representations and agreements by said plaintiff, he signed such chattel mortgage and entered into possession of such place and expended such sums and that the plaintiff has wholly failed to carry out its promises and agreements as alleged "in this paragraph, and he has been damaged in the sum of Six thousand dollars ($6000).” Upon application in any case the court may, upon notice, direct a Ml of particulars of the claim of either party to be delivered to the adverse party. (Code Civ. Proc. § 581.) The word “claim” is sufficiently broad to include not only matter set forth in an answer by way of counterclaim, but álso that which is effective only as a defense. (Kelsey v. Sargent, 100 N. Y. 602; Spitz v. Heinze, 77 App. Div. 317; Reader v. Haggin, No. 1, 123 id. 489.) There is a distinction under our Code pleading between a “defense” and a “counterclaim,” and when new matter is set up as an answer which may be either, unless characterized as a counterclaim it will be treated only as a defense. (Equitable Life Assurance Society v. Cuyler, 75 N. Y. 511; Rice v. Grange, 131 id. 149; Deeves & Son v. Manhattan Life Ins. Co., 195 id. 324.) In the demand served upon the defendant for a bill of particulars it was stated that such bill was required of defendant’s alleged counterclaim. This was followed, however, by a specification of five subjects upon which particulars were demanded, only two of which related to matters treated as a counterclaim. The notice of motion specified, as the relief asked for, a bill of particulars in compliance with the demand served, and the mandatory part of the order specifies five subjects in respect to which a bill of particulars should be furnished, but does not characterize these as being matters included only in that portion of the answer which sets up a counterclaim. We think that the specific statement of the matters concerning which particulars were sought controls the general statement that these were included in the counterclaim, and- that defendant could not possibly have been misled by the form of the demand and notice of motion, and there is no ambiguity in the terms of the order. With one exception we think that plaintiff was entitled to the relief granted. By the 5th paragraph of the order appealed from defendant was required to furnish “ An itemized statement showing in itemized detail the respect in which defendant claims, as alleged in said .paragraph VIII, damages in the sum of Six thousand ($6,000) dollars.” While in a proper case par ticulars of special damage may be required (Smith v. Bradstreet Co., 134 App. Div. 567; United States Paper Co. v. De Haven, 115 id. 403), when the damages resulting from the breach of a contract are general and not special, it is not proper to compel. the party claiming them to specify the particulars thereof. (Commercial Nat. Bank v. Hand, 9 App. Div. 614; Bolognesi v. Hirzel, 58 id. 530;. Radcliffe v. New York Cab Co., Limited, 134 id. 450.) Unless the allegations of the answer with regard'to the expenditure of $2,500 in repairs, fittings , and preparation for the conduct of such business for a period of ten years is a sufficient allegation of special damage resulting from a breach of the agreement on plaintiff’s part to procure defendant a lease, there is no allegation of such damage. Beyond that, the damages are general only. But by a previous clause of the order defendant had been required to furnish an itemized statement showing the kind and quantity of repairs, fittings and preparations, and an itemized statement of the cost and expenses thereof. This was all the plaintiff was entitled to on the subject of damages. The order should be modified by striking out the 5th paragraph thereof, and as so modified should be affirmed, without costs. Jerks, P. J., Carr, Woodward and Rich, JJ., concurred. Order modified by striking out the 5th paragraph thereof, and as so modified affirmed, without costs.