Jacobson v. Peiser

Lockwood, J. Plaintiff made a motion for a bill of particulars returnable April 24, 1933. The defendant did not raise substantive objections to the motion at that time, but alleged in his opposing affidavit that “ there are numerous and substantial objections to the particular items requested which, leave is requested, be not discussed until the plaintiff present sufficient proof to entitle him to the granting of the order.” The motion was granted in toto. The defendant now moves for reargument and for resettlement of the order made and entered the 8th day of May, 1933. Defendant objects to items 1, 5, 9, 14, 18,19 and 27. He consents to all others. Item 1 asks: By what portion of said agreement between the plaintiff and the defendant, plaintiff was required to do everything reason 298 able and necessary to meet competition in the territory provided by said agreement? A copy of the agreement is annexed to plaintiff’s complaint and made a part thereof and designated “ Exhibit A.” Defendant admits the signing of the instrument. Paragraph 4 of said agreement reads as follows: “ 4. The seller [Jacobson] agrees that in the event a competitor enters into the distributor’s [Peiser’s] territory, he shall do everything reasonable and necessary to meet such competition.” Item 1 is disallowed. Items 5, 9, 14,18 and 27 require itemized statements of the manner in which defendant computes his damages. The demand is for general damages following an alleged breach of contract. It follows, therefore, that items 5, 9, 14, 18 and 27 are improper and are disallowed. (Young v. Curtiss Aeroplane Co., 184 App. Div. 709; Oswego Falls Pulp & Paper Co. v. Stecher Lithographic Co., 215 N. Y. 98.) Item 20, to which no objection is made by defendant, is also improper for the same reason and is disallowed. Defendant’s objection to item 19 is that plaintiff has made certain allegations with regard to the same issue in his complaint. Nevertheless, the plaintiff is entitled to know what the defendant is going to claim at the trial under paragraph 26 of the defendant’s answer, so that plaintiff may prepare to meet the issue. Item 19 is allowed. Submit resettled order in accordance with this memorandum.