CLEGG v. THE AMERICAN NEWSPAPER UNION

CLEGG v. THE AMERICAN NEWSPAPER UNION. N. Y. Supreme Court, First Department; Special Term and Chambers, October, 1879. Pleading.—Bill of Particulars.—Amendment.—Making More Definite and Certain.—Code Civ. Pro., § 531. The remedy to obtain a bill of particulars from a party is by motion, unless an account is set out in his pleading. It is only where an account is set forth in pleading that a demand of particulars is proper without motion. Where counter-claims alleged the purchase by plaintiff from defendants of certain advertising space, in a specified list of newspapers (described in the complaint and answer) at a specified time, with specified rights and privileges on plaintiff’s part, an express promise to pay a specified sum therefor, then performance, readiness and willingness on defendant’s part to perform fully, payment in part by plaintiff, or non-payment, as the case might be, and specified the amount due, with interest from a specified date,—Held, that plaint- ■ ill’s remedy for any indefiniteness was not by motion to make the answer more definite and certain, but by a motion for defendants to furnish the particulars of the counter-claims. Motion by defendants to set aside a demand for a bill of particulars, and also by plaintiff to make answer more definite and certain. Two actions were brought by Charles A. Clegg against the American Newspaper Union, Andrew J. Aikens, William E. Cramer, John F. Cramer, and others ; both actions being, for the most part, against the same defendants. The first action was for damages for breach of a contract alleged to have been made by plaintiff with defendants, for advertising in sundry newspapers. The second was brought to recover back money alleged to have been paid by plaintiff to defendants on advertising contracts, in excess of the amount to which defendants 'were entitled under such contracts. The defendants separately answered, and most of them set up in their answers numerous counter-claims demanding affirmative judgments against the plaintiff. The counter-claims were of two classes: 1. Claims for advertising, in specified lists of newspapers, at dates specified,in each case, at plaintiff’s request and for his benefit, and for which plaintiff agreed to pay a specified sum, but had paid no sum whatever, in the following form, omitting the introductory words, viz.: “That before the commencement of this action, and on or about January 26, 1876, this defendant did advertising in said list of newspapers for plaintiff at his • request, and for his benefit, which was reasonably worth, and for which plaintiff agreed to pay, the sum of $180.60. That no part thereof has been paid, and that plaintiff is now indebted therefor in said sum, with interest from said date.” There were a large number of these counter-claims in this form, differing from each other only as to dates and amounts. 2. Claims for advertising space, in specified lists of newspapers, purchased by plaintiff of defendants at a time and for a price specified in the answer, and for which plaintiff had paid a part in some cases, and in others no sum whatever. In each case of part payment, the amount paid was specified, and also, where no payment whatever had been made, that fact was specified in the answer. Defendants also alleged full performance, except as prevented by plaintiff, of all the conditions and requirements on their part. The following, omitting the introductory words, is an example of the second class, viz. : “ That before the commencement of this action, and on or about September 28, 1875, plaintiff purchased of this defendant certain advertising space in defendant’s said list of newspapers, with the privilege of inserting advertisements in said space, and the right to have them inserted by defendant; and plaintiff promised and agreed to pay therefor the sum of $305.76. That this defendant performed, except as prevented by plaintiff, all the conditions and requirements on its part, and was at all times ready and willing to perform fully; but that performance was prevented by plaintiff, without any fault of this defendant; that no sum whatever has been paid by plaintiff on account, except, the sum of $242.76. That there is now,' and was at the time of the commencement of this action, due on account thereof, $63.00, with interest from December 23, ,1876.” Of each defendant so pleading by way of counter-' claim plaintiff demanded bills of particulars under section 531 of the Code of Civil Procedure, specifying as to the first class : 1. The matter claimed to have been advertised by. defendant. 2. The paper or papers employed. 3. The date or dates of each insertion. 4.-The rates charged therefor respectively. And as to the second class bills of particulars specifying: 1. A statement of the space alleged to have been purchased by plaintiff. 2. The paper or papers embraced in said purchase. 3. The period of time covered thereby. 4. The conditions and requirements referred to as having been performed by defendants in the premises. An order was obtained by defendants, for plaintiff to show cause why this demand for particulars should not be set aside. Upon the same day the plaintiff obtained an order for the defendants to show cause why they should not make their answers more definite and certain by amendment in the following respects : 1. By setting forth in each instance a particular description, of the space. 2. The terms and conditions of such purchase. 3. The newspapers embraced" therein. 4. The date and manner at and in which the defendants claimed to have performed the conditions and requirements of the contract of purchase on their part. 5. And the date and manner at and in which the plaintiff was claimed to have prevented the performance of said conditions and requirements by defendants. Both motions were decided together. W. W. MacFarland {Wm. H. O' Dwyer, attorney), for plaintiff. Chauncey B. Ripley and Joseph 8. Auerbach {Porter, Lowery, Boren &■ Stone, attorneys), for defendants Cramer ; and Qhauncey B. Ripley & Edward Q. Ripley, attorneys, for the other defendants appearing.—■ I. In motion to set aside demand for a bill of particulars. In neither of these actions is plaintiff entitled to a bill' of particulars upon demand, and both the statute and the oases which have interpreted it limit with great precision the right of plaintiff to a bill of particulars upon demand to a class of defenses which have not been interposed by any of the defendants in these actions. The statute provides only where an account is set forth in the pleading that the adverse party is entitled upon demand to be furnished with the items thereof, and the adjudicated cases have not extended the jurisdiction of the statute (Code of Pro. § 158 ; Code of Civ. Pro. § 531; Fullerton v. Gaylord, 5 Robt. 556 ; Dowdney v. Volkening, 37 Super. Ct. [J. & S.] 317, 318). Under the old practice before the Code an order for a bill of particulars was never granted without the necessity being shown by affidavit, and the statute has simply provided an additional remedy in such cases, by prescribing that where an account is alleged in the pleading the adverse party, upon demand, simply, is entitled to a bill of particulars, and the- statute leaves undisturbed the former practice in all other cases. No “account,” such as the statute and cases contemplate, is pleaded in these answers, and accordingly it devolves upon the- plaintiff in this case to show affirmatively, by affidavit, the necessity of a bill of particulars, and to secure an order therefor (Willis v. Bailey, 19 Johns. 268; Powers v. Hughes, 39 Super. Ct. [J. & S.] 482). Nor should a bill of particulars be ordered, for there is no such generality of pleading which it is the office of such a bill to limit. The object of it is to limit the generality of pleading, and to prevent surprise in the trial of a cause. It was never intended to furnish evidence to the other side for preparation for trial (Drake v. Thayer, 5 Robin. 701); for anything that appears, .the plaintiff is as well acquainted as the defendants with the particulars of the defense, and that fact is an unanswerable reason why the bill of particulars should not be ordered (Robinson v. Comes, 13 Hun, 292). Defendants’ motion to have the demand for a bill of particulars declared a nullity is proper (Dowdney v. Volkening, supra); otherwise the judge upon the trial might hold that the demand was a proper one to be complied with, and preclude the defendants from giving testimony as to their defense. Under the old practice, it is true that a mere demand did not have that result, but the plaintiff would have been obliged to secure at special term an order precluding such testimony (Graham Pr., 7 ed. § 219); this was doubted, however, in Kellogg v. Paine (8 How. Pr. 329). II. In motion to make answers more definite and certain.—This motion, being in the nature of a special demurrer, must be decided with reference to what appears upon the face of the pleading attacked, and upon that only (Prindle v. Caruthers, 15 N. Y. 425, 431; Kellogg v. Baker, 15 Abb. Pr. 286, 289 ; Brown v. Southern Michigan R. R. Co., 6 Id. 237, 239; Lee Bank v. Kitching, 11 Id. 435, 439; Stephen on Pl. 96, 158; Bouv. Law Dict. art. Demurrer). But the answers are not obnoxious to a motion that they be made more definite and certain, being in full compliance with the requirements of our rules of pleading a cause of action (Kellogg v. Baker, 15 Abb. Pr. 286; St. John v. Beers, 24 How. Pr. 379, 380; Code of Civ. Pro. §§ 501, subd. 2, 502, and 481, subd. 2; Pomeroy Remedies & Remedial Rights, § 738 ; Allen v. Patterson, 7 N. Y. 476, 478; Beekman v. Platner, 15 Barb. 551). Plaintiff has mistaken his remedy, if he has any. It is not because the meaning of the allegations contained in the pleading is. not apparent (Code Civ. Pro. § 546) that the amendment is asked, but because no particulars are given. It must appear upon the face of the pleading that the “meaning or application” of the “allegations” is not “apparent” (Code Civ. Pro. § 546). Plaintiff cannot avail himself both of a bill of particulars and amendment (2 Wait Pr. 409, and cases cited). Each counterclaim contáins all the essentials of a good cause of action (Abb. Forms Pl. & Pr.); and as the statute requires (Code Civ. Pro. § 481, subd. 2); and such as is sufficient under any system of pleading (Brown v. So. Mich. R. R. Co., 6 Abb. Pr. 237, 238; Allen v. Patterson, 7 N. Y. 476). Motions by one pleader to correct the pleading of his adversary are not to be encouraged. Necessity must exist and be apparent from the face thereof (Maloney v. Dows, 15 How. Pr. 261). [MAJORITY — Westbrook, J.] Westbrook, J. Section 531 of Code authorizes a demand for a bill of particulars, where an “ account ” is set out in answer. There is no “ account ” set out in answer. The motion to set aside demand is granted. The motion to make the answer more definite and certain is also denied. The remedy of the plaintiff, if he has any, is to move the court to compel the defendants to furnish the particulars of these counter-claims. This conclusion is not inconsistent with my construction of section 531. That section applies to matters of “ account,” in which, without motion, a demand of particulars can be made. In this case it is held the remedy is to procure items of counter-claims by a motion.