Opinion
May, 1904.
James Kearney, for the appellant.
Henry F. Lippold, for the respondent.
This action was brought to recover the value of materials furnished and labor performed by the plaintiff for the defendant (with the exception of a small item) in installing a heating appliance in an apartment house.
In the answer interposed the defendant alleged that the labor and materials for which a recovery was sought were performed and furnished under an agreement which the plaintiff failed to keep and perform on his part, in that he abandoned the work before its completion and that the materials furnished were not of the quality or the work performed of the character called for by the contract, by reason of which she had been damaged to the extent of $370, which she pleaded by way of counterclaim.
Plaintiff served a reply and then moved that the defendant serve a bill of particulars of the alleged counterclaim, specifying in what respect the plaintiff did not complete the work required by the agreement, in what respect the materials furnished and the work performed were inferior in quality and character to that called for by the contract, and specifying particularly as to each item of work and material and the location thereof, and also in what respect the performance of the work and the furnishing of the materials was abandoned in an incomplete and unfinished state. The motion was granted and defendant has appealed.
The order appealed from must be reversed. Before the plaintiff can recover, if the work were performed and materials furnished under the agreement as alleged in the counterclaim, he must prove performance upon his part. The burden is upon him to show that he has kept his agreement by performing the work within the time specified, and that the materials are of the quality and the work of the character called for. He is no more entitled to a bill of particulars because the defendant has seen fit to allege the existence of an agreement than he would have been had he brought his action upon the contract and defendant had interposed a general denial. In that case he would have to prove performance before he could recover, and that he must do now if there were an agreement as defendant alleges.
The order appealed from, therefore, is reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
O'BRIEN, INGRAHAM and HATCH, JJ., concurred; VAN BRUNT, P.J., dissented.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.