James S. Herrman, Appellant, v. Francis L. Leland, Respondent

James S. Herrman, Appellant, v. Francis L. Leland, Respondent. First Department, January 19, 1912. Pleading —bill of particulars—damages resulting through negligence. Where in an action for services rendered as a confidential agent for the defendant in negotiating with materialmen and contractors, settling liens and charges, and for supervising the completion of a building, the defendant counterclaims damages alleged to have been caused by the plaintiff’s negligence and want of skill, alleging that by reason thereof the building cost a certain sum more than it should have cost, the defendant, being required to prove specific items of excessive cost, will be ordered to give a bill of particulars thereof. But, as the plaintiff must prove performance of his contract, he is not entitled to particulars as to his own negligence and failure to perform. Appeal by the plaintiff, James S. Herrman, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of June, 1911, denying the plaintiff’s motion for a bill of particulars. Richard T. Greene, for the appellant. Frank B. Colton, for the respondent. [MAJORITY — Miller, J.:] Miller, J.: While the pleadings take a wide range, the issue involved in this appeal comes within a narrow compass, and may be thus stated: The plaintiff sues for services rendered as a master builder and confidential agent of the defendant in negotiating with materialmen and contractors and settling liens and charges upon an unfinished apartment house, purchased by the defendant, and in procuring the labor and material's necessary to complete the same and in supervising such completion; the defendant sets up a counterclaim for damages sustained by the plaintiff’s negligence, inattention and want of skill, and asserts that, by reason thereof, the cost of satisfying said liens and charges and of completing the building was $115,000, whereas it should have been only $90,000. The plaintiff must prove performance of his contract, and, of course, should not be permitted to limit the defendant’s proof on that issue. He was, therefore, not entitled to the particulars of his own alleged negligence and failure to perform his agreement. However, it will be exceedingly difficult for the plaintiff to prepare to meet the defendant’s claim for damages unless apprised of the particulars thereof. That claim is based upon the alleged excess in the cost of completing an apartment house and in satisfying various liens and charges thereon over what should have been expended. It may involve the claims of one or of any number of materialmen and contractors. If the defendant is able to support his claim with proof he should be able to furnish the plaintiff the particulars of it, whereas the plaintiff will be at a great disadvantage unless he knows the items making up the defendant’s claims. While it is not often practicable to furnish the items of a claim for general damages, and for that reason such particulars are not usually required (Oliver Refining Company v. Aspegren, 140 App. Div. 549), we think this case, does not fall within that rule. The damages claimed in this case are, in a sense, special damages. The ; defendant will have to prove the specific items of excess cost, caused by the plaintiff’s negligence, inattention or failure to perform his contract, and. should, therefore, be required to furnish the plaintiff those items. (Hopper v. Weber, 84 App. Div. 266; Kelly v. St. Michael’s Roman Catholic Church, 124 id. 505.) Upon critical examination the cases relied upon by the learned justice at Special Term, and by the respondent on this motion, will be found to support the conclusion we have reached. (See Reitmayer v. Crombie, 94 App. Div. 303; O’Rourke v. United States Mortgage & Trust Co., 95 id. 518; Brandt v. City of New York, 99 id. 260; Radcliffe v. New York Cab Co., Ltd., 134 id. 450.) In the first case cited the counterclaim was only for the sum of $370, and the court reversed an order requiring the defendant to specify the respects in which the plaintiff had failed to perform the contract. In Brandt v. City of New York (supra) the defendant had not set up a counterclaim, but in that and the two other cases cited particulars were required. The order should be reversed, with ten dollars costs and disbursements, and motion granted requiring the defendant to furnish particulars of the items making up the sum of $25,000 in excess of the amount which the defendant claims was the reasonable cost of completing the building and satisfying liens and charges thereon, with ten dollars costs. ■ Ingraham, P. J., Laughlin, Clarke and Scott, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion granted to extent stated in opinion, with ten dollars costs.' Order to be settled on notice.