Opinion
October 15, 1951.
In an action on accounts stated and for work and materials furnished, plaintiffs appeal from so much of an order which denied in part a motion to vacate or modify a demand for a bill of particulars. Order modified on the law by striking out subdivisions 2 and 3 of the ordering paragraph and by adding to subdivision 1, after the numeral 25c, the following: "1c, 7c, 13b, 14b, 15b, 17c and 23b, 26, 4a, 17b, 6a, 12a, 16a, 21a and 24a;" and by adding, "2. Items 1b, 7b, 13a, 14a and 15a are modified by deleting the words `assumed by the plaintiffs for service and maintenance'"; and by deleting the words "for each of said items" and substituting therefor, "for said work and materials for each service agreement account." Items 13a, 14a and 15a are further modified by adding at the end of each item the words, "provided such details are not included in the particulars to be furnished in response to item 7b." Items 18a, 19a and 23a are modified by deleting the words "assumed by the plaintiffs". As so modified, the order, insofar as appealed from, is affirmed, with $10 costs and disbursements to the appellants. The complaint does not allege that plaintiffs assumed the service and maintenance agreements made by defendants with their customers. Items of demand for details of such contracts and clauses in other items which state plaintiffs assumed such maintenance agreement should have been struck out. Items requiring details of demands for payment likewise should have been eliminated. Plaintiffs, as the complaint is framed, are not required to establish demands for payment. While plaintiffs will not be required to prove the details of work, labor and services and materials furnished to defendants in order to succeed for accounts stated, because of the allegation of performance in the fifth cause of action which is for the reasonable value of the work, labor and services and materials, defendants are entitled to particulars of the claimed performance as limited by the modifications above directed. With the information called for by the items allowed to stand, defendants will be sufficiently advised of the particulars of plaintiffs' causes of action. Nolan, P.J., Johnston, Adel, Wenzel and MacCrate, JJ., concur.