Oliver Refining Company, Respondent, v. Adolf Aspegren and John Aspegren, Appellants

Oliver Refining Company, Respondent, v. Adolf Aspegren and John Aspegren, Appellants. First Department, November 18, 1910. Pleading — bill of particulars — bill complying with order. A defendant who, in answer to an order for a bill of particulars of a counterclaim for damages caused by the plaintiff’s failure to supply tank cars as agreed, has served a bill stating the amount paid for tank cars hired by him and also stating that by the plaintiff’s failure to deliver cars as agreed, the defendant was prevented from operating his refinery and procuring and delivering oil resulting in a loss of a sum stated, has sufficiently complied with the order and will not be compelled to give further particulars of the second item. The defendant by not appealing from the first order for a bill of particulars is not estopped from refusing to give further particulars. Appeal by the defendants, Adolf Aspegren 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 1st day of September, 1910. Benno Lewinson, for the appellants. Arthur G. Stiles for the respondent. [MAJORITY — Scott, J.:] Scott, J.: Defendants appeal from an order requiring them to furnish a further bill of particulars. The question involved in the appeal arises under a counterclaim interposed by,defendants as assignees of the Portsmouth Cotton Oil Refining Company. The allegation of the counterclaim is.that plaintiff agreéd to have thirty-one tank cars put in condition before the season arrived for shipping the product of the refinery, and that it failed to do so. The allegation in the answer is generally that, by reason of such failure, defendants suffered damage to the extent of $4,250. By a former order the defendants were required to specify: “The various and sundry .items, giving them in detail which enter into and make up the alleged damages of $4,250 as alleged in the said second counterclaim.’? This oi’der was not apjiealed from and the defendants served a bill of particulars in which they undertook to comply with the order by the following statement: “ Paid for use of 10 tank cars, * * * $760.00. Loss occasioned by failure of plaintiff to deliver cars as agreed, thus preventing the operation of the refinery and the procuring, refining and delivery of oil, $3,490.0,0.” The purpose of’the present motion is to compel the defendants to specify in greater detail the particulars of the second item of damage as above stated. In our opinion the defendants had already sufficiently complied with the requirements of the first order. They liad divided tlieir'elaim into two items, one consisting of the rent of the cars, and the other consisting of what are known as general damages resulting from the enforced cessation of the operation of the refinery. It is not usually considered necessary or feasible to require a bill of. particulars of such damages. (Radcliffe v. N. Y. Cab Co., Ltd., 134 App. Div. 451; Floersheim v. Musical Courier Co., 103 id. 388.) It is contended that it is no longer open to defendants to refuse to give the particulars now demanded, because they did not appeal from the first order and that that order required the specification of particulars now asked for. We do not sounder-stand. The first order required a specification of the items going to make up the claim of $4,250. The defendants gave two items, one of particular damage, and one vof general damage. This was an attempt, and, as we think, a successful one, to comply with the order, and left open the question whether or not the item of general damage should be more particularly specified. That question had been left untouched by the first order. It follows that the order appealed from must be reversed, with fen dollars costs and disbursements, and the motion denied, with ten dollars costs. Ingraham, P. J., Laughlin, Clarke and Miller, J J., concurred. Order reversed, with ten dollars costs and disbursements, and • motion denied, with ten dollars costs.