Opinion
May 5, 1952.
In an action to recover damages for breach of contract by defendants, they counterclaimed for damages for loss of profits resulting from plaintiffs' failure to deliver certain machines exclusively to defendants, which machines were not procurable in the open market. Plaintiffs demanded particulars as to the computation by defendants of their cost of manufacture. Defendants' answer stated merely that it operated on a 15% profit percentage of selling price. Plaintiffs moved for a further bill of particulars as to the computation of loss of profits. The motion was granted as to some items and denied as to others. Plaintiffs appeal from the order insofar as denied. Plaintiffs then moved to preclude defendants from giving evidence as to loss of profits. The motion was denied. Plaintiffs also appeal from that order. Order of October 10, 1950, denying motion for further bill of particulars modified on the law and the facts by striking out the ordering paragraph and substituting therefor the words "Ordered that the said motion be and the same is hereby granted." As so modified, the order is affirmed, with $10 costs and disbursements to appellants. Order of January 4, 1951, denying motion to preclude modified on the law and the facts by adding thereto the words "with leave to renew same upon defendants' failure to furnish the particulars directed by the order of October 10, 1950, as modified herewith." As so modified, the order is affirmed, without costs. Plaintiffs are entitled to particulars as to defendants' cost of manufacture because loss of profits constitutes special damages under the circumstances in the case at bar. ( Parsons v. Sutton, 66 N.Y. 92; Roberts v. Safety Buggy Co., 1 App. Div. 74.) Carswell, Acting P.J., Johnston, Adel, MacCrate and Schmidt, JJ., concur.