Breslauer Realty Co. v. Cohen

Ingraham, J.: The action is brought to recover the damages sustained by the-plaintiff, by reason of a breach of a contract to convey a piece of property, with the buildings and improvements thereon erected .or-to he constructed there'on, The complaint alleges that by a contract in writing the defendants agreed, at their own proper cost and expense, to complete the .erection of/two buildings-on certain premises described in accordancé with the plans of an architect named in the contract, a copy of -the contract, being annexed to the complaint. The complaint then alleges, NmlhAhat the plaintiff offered to-accept a conveyance of the premises provided the buildings were constructed, built and finished as provided for by the terms of the contract, and duly tendered payment of the purchase price, but the defendants failed, neglected and refused to convey to the plaintiff the premises in accordance with the terms of the contract, in that the buildings erected on said premises were not finished or completed in accord [361] anee with the sample houses, and were not finished or built in accordance with the plans on file; and also alleged, Eleventh, that “ because of the failure of the defendants to comply with the terms of their contract and specifically perform the same this plaintiff has been damaged in the sum of Five thousand ($5,000) dollars.” I think that the plaintiff should have been required to furnish a bill of particulars as to the allegation set forth in the 9th clause of the complaint. The contract for the completion of these houses contains many clauses in relation to the buildings to be erected upon the premises. It would be impossible for the defendants to prepare for trial without knowledge of the particulars in which the plaintiff claims that the houses were not completed as required by the contract. The action is to recover the damages sustained •because the defendants did not complete the work in" accordance with their contract. The plaintiff must know in what respects it justified its refusal to accept the work when tendered by the defendants, and in what respect the buildings were not. then completed as provided for in the contract. I think, therefore, that the defendants were entitled to this information. Particulars should not be required as to the allegation set forth in the 11th clause. The allegation as to damage is general, the particulars of which I think were not necessary. Plaintiff would be entitled to show generally the1 damage that it sustained, but it is not a case where there are particular items of damage as to which the plaintiff would be entitled to the particulars. The case of Messer v. Aaron (101 App. Div. 169) is not in point. There the objections were to the title 2-elied-on by the defendant, particulars of which were sought. A bill of particulars in that case had been served, and what the court held was that the bill furnished was sufficient information as to-the objections to the title. The order should, therefore, be modified by requiring the plaintiff to specify the particula2,s in which the buildings were not constructed in compliance with the contract, and the order as modified affirmed, with ten dollars costs and disbursements. O’Brien, P. J., Laughlin, Clarke and Scott, JJ., concurred. Order modified as directed in opinion, and as modified affirmed, with ten dollars costs and disbursements.