Samuel Gross and Davis Eisler, Respondents, v. Sarah Conner and Mary Weiser, Appellants

Samuel Gross and Davis Eisler, Respondents, v. Sarah Conner and Mary Weiser, Appellants. First Department, June 15, 1906. Bill of particulars in action for specific performance. In an action by a vendee for a specific performance of a contract to sell lands, or for damages if specific performance cannot be decreed, when the plaintiff alleges that the premises as tendered by the defendants are incumbered by numerous “violations” and other incumbrances not set forth in the contract, the defendants are entitled to a bill of particulars stating the violations and other incumbrances, and also the items of damage claimed. But the defendants are not entitled to particulars of the respects in which they are alleged to have refused to comply with the terms of the contract.. Appeal by the defendants, Sarah Conner and another, 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 10th day of April, 1906, denying the defendants’ motion for a bill of particulars. John E. Donnelly, for the appellants. Joseph Wilkenfeld, for the respondents. [MAJORITY — Laughlin, J.:] Laughlin, J.: This is an action by the vendees for the specific performance of a contract for the sale of real property, and in the event that specific performance cannot be decreed, then for $7,500 damages. The plaintiffs allege that the title tendered by the defendants instead of being free and clear of incumbrances, except those set forth in the contract, was “ subject to a number of violations on file with the various departments of the city of New York, which violations were on file prior to the execution of said contract as hereinbefore mentioned, and which violations were not complied with on the date set for the closing of said title, and that said premises were also subject to other incumbrances and charges.” The making di the contract was admitted, but the answer put in issue the other material allegations of the complaint. The defendants moved for a bill of particulars of (1) the number of “ violations ” and of the “ other incumbrances and charges; ” (2) the respects in which they refused to comply with the terms and conditions of the contract, and (3) of the items of the $7,500 damages. We are of opinion that the motion should have been granted as to the first and third demands and denied as to the second. The demand as to the number of “violations” was doubtless denied upon the theory that they were matters of record which could be readily ascertained. It is alleged, however, that the violations filed were numerous, and it is not alleged that none of them were complied with so that defendants would understand that complaint was made concerning all of them. The plaintiffs should be required to specify the particular violations which they claim were not complied with' and constituted an incumbrance at the time title was tendered and rejected. This will narrow the issue, will enable the defendants to confine their preparation to the things that are to he litigated, and by eliminating things about which there is no controversy should materially shorten the trial. The defendants are also entitled to a bill of particulars of the damages claimed to have been sustained by the plaintiffs in consequence of their failure to perform the contract to the end that they may be able to investigate the facts and be prepared on the trial to meet the evidence. It follows that the order should be reversed, with ten dollars costs and disbursements, and motion granted as to first and third demands, but without costs. O’Brien, P. J., Patterson, Ingraham and Clarke, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion granted as stated in opinion, without costs. Settle order on notice.