Baltimore Machine Works, Respondent, v. John McKelvey, Appellant

Baltimore Machine Works, Respondent, v. John McKelvey, Appellant. Bill of particulars as to tenants canceling leases because of the plaintiff’s delay in putting elevators in the demised premises, and of others refusing to rent them for that reason — the failure to serve it should not preclude proof of general damages— measure of such general damage. In an action to recover upon a promissory note, given in payment for two passenger elevator's installed by the plaintiff in the defendant’s building, the defendant alleged as a counterclaim that the plaintiff did not deliver the elevators within the contract period and that he'had not installed them properly, and that, in consequence thereof, the defendant had failed, to rent his . apartments and had lost the rents and profits thereof for the year beginning October 1, 1900. He demanded judgment against the plaintiff for the amount of suc¡k loss. , The defendant served a bill of particulars stating, among other things, that he rented two apartments, the lessees of which surrendered their leases because the elevators were hot in operation; and, further, that he could have rented some of the other apartments to persons who examined them and expressed themselves willing to hire them, but who refused to do so because the elevators were not running. Held, that the court might properly require the defendant to serve a further bill • of particulars stating, the names and last-known addresses of the tenants who rented the two apartments referred to in the bill of particulars and who canceled their leases because the elevators were not in operation, and the sums which the defeudant would have . received had the plaintiff fulfilled its contracts, and also stating the names and addresses of the persons who were not able to rent said premises and who refused to do so because of plaintiff’s failure,'and the rental value of the apartments which such persons refused to take; That the order requiring the service of the bill of particulars should not provide “that if the defendant fail to serve such further bill of particulars * * * he be precluded from giving any evidence upon the trial of this action of the items, matters and damages contained in said amended answer as to which said further bill of particulars is ordered,” as such language was open to the criticism that it would prevent the defendant, in the event of his failure to serve the further bill of particulars, from introducing evidence of general damages, the measure of which damages would be the difference in the rental value of the apartments with and without the elevators. Appeal by the defendant, John McKelvey, from portions of 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 6th day of January, 1902, granting the plaintiff’s motion for a further bill of particulars. I. Newton Williams, for the appellant. Howard Hasbrouck, for the respondent. [MAJORITY — O’Brien, J.:] O’Brien, J.: The action is brought to recover the sum of $2,000 on a promissory note, the consideration for which was the manufacture, delivery and installation by the plaintiff of two electric passenger elevators in a certain building of the defendant situated in the city of New York. In addition to a general denial and an affirmative defense of no consideration, the defendant in his answer sets up a counterclaim dné, as alleged, to the failure of the plaintiff to deliver the two elevators within the contract time and to the imperfect installation thereof after delivery, whereby the defendant failed to rent his apartménts and lost the rents and profits thereof for the year beginning October 1, 1900, for which loss, in the nature of damages sustained, he demands judgment against the plaintiff for $22,500. In the bill of particulars furnished the defendant states, among other things, that he rented two apartments, the lessees of which surrendered their leases about October 1, 1900, because the elevators were not installed and running; and, further, that he could have rented some of the other apartments to persons who examined them and expressed themselves willing to hire them, but who refused to do so as the elevators were not running. The portion of "the order appealed- from, granting plaintiff’s motion for a further bill of particulars, directs the defendant to give the names and last known addresses of the tenants who rented the two apartments referred to and who canceled their leases because the elevators were not in operation and the sums which the defendant would have received had they fulfilled their contracts; and to give, also, the names and addresses of the large number of persons who were not able to rent said premises and who refused to do so because of plaintiff’s failure and the rental value of the apartments which such persons refused to take, The direction that these particulars should be furnished was, wé think, right; and were it not that the order entered upon the direction is in terms rather broad and might be construed as preventing the defendant from introdncing any evidence bearing upon the rental value of the apartments, we should be content with affirming the order. The provision is “ that if the defendant fail to serve such further bill of particulars * * * he be precluded from giving any evidence upon the trial of this action of ihe items, matters and damages contained in said amended answer as to which said further bill of particulars is ordered.” The particulars directed to be given are in the nature of special damages, and it was proper,' therefore, in order to prevent surprise upon the trial, that they should be furnished or the defendant precluded from giving evidence thereof. We do not think, however, that it was the intention of the learned judge at Special Term, by the order entered (which, unless the particulars mentioned were furnished, would exclude evidence as to these special damages), to prevent the defendant from introducing what evidence he may have tending to prove general damages. “ Those (damages) which necessarily result from the injury are termed general damages; * * * such damages as are the natural although not the necessary result of the injury, are termed special damages.” (Vanderslice v. Newton, 4 N. Y. 132; also, Stevens v. Rodger, 25 Hun, 54.) The measure of damages (general) would be the difference in the rental value of the apartments with, and the rental value without, the elevators; and the special damages are those which might 9.1’ise because particular persons would not lease, or, having leased,, terminated their leases for the reason that the elevators were not furnished. The loss of particular rentals, therefore, being special damages, it was entirely proper that the Special Term should direct that the particulars demanded should be given. This, no doubt, was all that was intended; but, in view of the criticism which has been made of the language employed in the order, and which is rather broad, we think, to avoid any misunderstanding as to its scope, it should be limited as indicated, and the order as so modified should be affirmed, without costs.- Yah Brunt, P. J., Patterson, McLaughlin and Laughlin, JJ.', concurred. Order modified as directed in opinion, and as modified affirmed, without costs.