Henry E. Fox, Respondent, v. Isaac Davidson, Appellant

Henry E. Fox, Respondent, v. Isaac Davidson, Appellant. Bill of pa/rticulars — as to allegations in a complaint for the foreclosure of a mechanic’s iien. A complaint in an action to foreclose a mechanic’s lien, filed by the plaintiff for work done under a contract with the defendant, which alleges that the defendant committed a breach of the original contract and subsequently agreed to deliver certain notes to the plaintiff if the latter would proceed with the work, entities the defendant to a bill of particulars stating the time and place at which the alleged new agreement was made. Where such a complaint also alleges that the defendant waived provisions of the contract, fixing a time for the completion of the building,, and requiring that the premises should be erected to the satisfaction and under the direction of a designated architect; that the value of additions to or omissions from the work provided for by the contract should be stipulated in writing and signed by the parties to the agreement, and that payments should be made upon certificates signed by the architect, the defendant is entitled to a bill of particulars specifying the acts or statements upon which the alleged waiver is predicated. Appeal by the defendant, Isaac Davidson, 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 13th day of July, 1899, denying the defendant’s motion for a bill of particulars. The action was brought to foreclose a mechanic’s lien filed by the plaintiff for work done by him under a building contract with the defendant. Henry A. Forster, for the appellant. Edmund Luis Mooney, for the respondent. [MAJORITY — Ingraham, J. :] Ingraham, J. : The defendant applied to the court below for a bill of particulars as to several of the allegations of the complaint. The complaint alleged the making óf a contract between the plaintiff and the defendant; that there was a breach of the contract by the defendant ; that subsequently the defendant requested the plaintiff to proceed with the said work and promised that if he would do so the defendant would deliver to the plaintiff certain notes. The defendant asked for a bill of particulars of the time and' place when this new agreement was alleged to have been made. We think the plaintiff was entitled to such bill of particulars. The allegation as to the new agreement is extremely indefinite. The time and place at which it was made were not stated, and it would he manifestly unsafe for the plaintiff to proceed to trial unless he could have such particulars. The complaint also alleged that the defendant waived the provisions in the said agreement providing that the said premises should he completed by November 1, 1896, and that the premises should be erected to the satisfaction and under the direction of .'the architect mentioned in said agreement; that the value of additions to or omissions from the work provided for by said contract, should be stipulated in writing and signed by the parties to said ' agreement; and that the payments and other considerations mentioned in said agreement should be made to the plaintiff, provided-a certificate should he obtained and signed by the said architect when each of the considerations should become due. We think that the defendant was entitled to a bill of particulars specifying the act or acts or statements from which such waivers as are alleged in the 4th paragraph of the complaint could be implied. It would he manifestly impossible for the defendant to be prepared for- trial unless he-was in some way apprised of the nature of the waiver and whether it was by express agreement or to he implied from his acts or declarations. The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion granted to the extent-indicated, with ten dollars costs. Van Brunt, P. J., Patterson, O’Brien and McLaughlin, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion granted' to the extent indicated, with ten dollars' costs.