Opinion
November 10, 1911.
Easton S. Bacon, for the appellant.
George A. Gregg, for the respondents.
The defendants Etherington and Ross entered into a contract with the defendant Droge for the erection of a dwelling house. Plaintiff's assignor, Tisdale, furnished lumber to the contractors which was used in the building, and has filed a mechanic's lien for the unpaid balance of the purchase price. He also sued Etherington and Ross at law for this lumber and obtained a money judgment. Tisdale later assigned both the lien and judgment to the plaintiff, who also acquired by assignment the claim of Etherington and Ross against Droge for material and labor. Etherington and Ross failed to complete the building within the time limited by their contract, and Droge thereupon terminated the same, and completed the house at their expense, pursuant to the provisions of the contract. Two causes of action are alleged in the complaint, the first for a money judgment upon the claim of Etherington and Ross, and the second for the foreclosure of the mechanic's lien. Substantial performance of the contract is alleged. It is also alleged that the defendant Droge completed the contract at an expense of not to exceed $100; both of these allegations are denied by the defendant Droge, who alleges an actual expenditure in the completing and finishing of the building of $1,105.79. It is as to the cost of the completion that the plaintiff seeks an examination of the defendant Droge before trial.
The completion of the building by Droge on account of the contractors Etherington and Ross, and the cost thereof, must be shown as a part of the plaintiff's affirmative case. ( Martin v. Flahive, 112 App. Div. 347.) A party is entitled to a full examination of his adversary before trial, upon facts which are material to the issues ( McKeand v. Locke, 115 App. Div. 174; Donaldson v. Brooklyn Heights R.R. Co., 119 id. 513); and where, as in this case, the moving papers comply with the requirements of section 872 of the Code of Civil Procedure and with rule 82 of the General Rules of Practice, the court must not insist upon additional requirements. ( Shonts v. Thomas, 116 App. Div. 854.) The fact that the applicant can subpœna the witness, or that he will stipulate to be present at the trial and be sworn as a witness in his own behalf, or that the evidence sought can be obtained through other persons, is no answer to the application. ( Goldmark v. U.S. Electro-Galvanizing Co., 111 App. Div. 526.) The plaintiff must prove the cost of completion of the building, and it is important that it should be informed as to just what Droge did in that respect and what portion of material used and labor procured by him is properly chargeable to the contract. Although Droge may have expended in completing the building the full amount claimed, it does not follow that all of that sum is a legal charge against his contractors. He is only entitled to the benefit of such sum as was necessarily expended in completing the building in accordance with the requirements of the contract and specifications therefor, and the plaintiff should be given the opportunity of learning from Droge, who alone possesses such information, each item of labor and materials, with the amount expended therefor. The plaintiff is not deprived of this right by its demand for the bill of particulars served in this action, as it is limited to the statement of the gross amounts said to have been paid workmen or contractors, for repairing defects and in the purchase of material. It does not aid the plaintiff in determining the question of necessary cost involved in the action. A bill of particulars is an extension of the complaint or answer and necessarily part of the pleadings, and in the late case of Curran v. Oppenheimer ( 143 App. Div. 271) it was held that the plaintiff was entitled to an examination of the defendant, although the latter had made admissions and statements in his answer of the facts as to which an examination was sought.
The order vacating the order for the examination before trial must be reversed, with ten dollars costs and disbursements, and the motion to vacate denied, with ten dollars costs.
JENKS, P.J., BURR, CARR and WOODWARD, JJ., concurred.
Order of the County Court of Queens county reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.