Isaac A. Hopper and Thomas T. Hopper, Respondents, v. Gustavus C. Weber and Charles J. Weber, Appellants

Isaac A. Hopper and Thomas T. Hopper, Respondents, v. Gustavus C. Weber and Charles J. Weber, Appellants. Sill of particulars — right to, of a plaintiff, as to portions of a contract sued upon, alleged by the defendant not to have been, peiformed, and as to the damages resulting therefrom. The complaint in an action alleged that the plaintiffs had fully performed the contract sued upon except in a particular specified. The answer denied the allegations of the complaint, and set up as a counterclaim a breach of the contract by the plaintiffs for which the defendants sought to recover damages’. ■ Silid, that, the plaintiffs were entitled to a hill of particulars specifying the portions of the contract which the defendants claimed that they had neglected to perform and also specifying the particulars of the damages resulting to the defendants from the alleged breach. Appeal by the defendants, Gustavus C. Weber and another, from so much of an order of the Supreme Court, made at the Hew Work Special Term and entered in the office of the clerk of the county of Hew York on the 11th day of February, 1902, as directs the defendants to serve a bill of particulars of the counterclaim set up in their answer. Alexander 8. Andrews, for the appellants. Joseph E. Bullen, for the respondents. [MAJORITY — Ingraham, J.:] Ingraham, J.: We think the court was justified in requiring the defendants to serve a bill of particulars. The answer denies the allegations of the complaint, which are to the effect that the plaintiffs had fully performed the contract upon which the action is based, with an exception specified, and then as a counterclaim the defendants alleged a breach of the contract by the plaintiffs and ask to recover damages caused thereby. If the defendants should succeed in defeating the plaintiffs upon their right to recover, there would still remain undisposed of the question as to whether the defendants were entitled to an affirmative judgment against the plaintiffs for the damages sustained by reason of the plaintiffs’ failure to complete the contract; and to enable the plaintiffs to meet that claim, they are entitled to have the particulars as to the portions of the contract that the plaintiffs have failed to complete, upon which the defendants base their right to recover the damages, specified. The failure of the plaintiffs to prove that they had complied with their contract so as to be entitled to recover the amount payable by the contract would not of itself justify the court in awarding a judgment in favor of the defendants against the plaintiffs for damages that had been sustained by the plaintiffs’ failure to complete the contract. To recover such damages it is necessary for the defendants to prove the breach by the plaintiffs and the damages sustained thereby; and to enable the plaintiffs to meet that claim of the defendants, it is proper that they should be apprised of the. particular instances in. which the plaintiffs failed to complete the contract upon which the defendants base' their right to recover, and the particulars of the damages caused the defendants thereby. It is not necessary to consider the other clause of the order which precludes the defendants' from giving evidence as to the counterclaim in case of a default in the service of the bill of particular,' as that portion of the order is not appealed from, the notice of appeal limiting the appeal from so much of the order as directs the defendants to furnish certain particulars specified. ' It follows that the order, so far as it is appealed from, is correct and should be affirmed, with ten dollars costs and disbursements. Patterson, O’Brien, McLaughlin and Hatch, JJ., concurred. Order affirmed, with ten dollars costs and disbursements.