Belasco v. Klaw , 89 N.Y.S. 208 ( 1904 )

McLaughlin, J.:

This action was brought to recover the sum of $50,000 which the plaintiff alleges defendants received for his use and bénefit.

The allegations of the complaint are, in substance, that the plaintiff is the author of a play called “ The Heart of Maryland, ” and that in the month of September, 1900, he organized a theatrical company for the purpose of producing the play and hired the defendants, who are copartners engaged in the theatrical business and in what is more practically known as “ booking plays,” ■ at an agreed price, which was paid to them, to secure for the plaintiff’s company engagements throughout the United States at such times and upon such terms as in defendants’- discretion seemed best, for the season of 1900; that in the month of December, 1900, the same arrangement was made for the season of 1901; that after said contracts were made the defendants, in pursuance thereof, procured engagements „ for the plaintiff’s company for certain times and upon certain terms, and in so doing received compensation from those with whom the said play was booked; that the defendants, in booking said play, contracted with themselves and others who were jointly interested with them, for theatres; that the amount which they received aggregated the sum of $50,000, which it is alleged was received for and belongs to the plaintiff and for which judgment was demanded. The answer admitted that the defendants were copartners and as such procured .engagements for the play mentioned in the complaint, and denied all the other material allegations of the same.

The action being at issue the defendants moved for a bill of particulars of the plaintiff’s claim, which motion was granted and the plaintiff appeals.

I think the order appealed from should be reversed. There is no foundation laid in any of the -papers set out in this record upon which the order can properly be based. The information which the defendants seek by the bill of particulars is peculiarly within their own knowledge, and this being so, they are not entitled to have the plaintiff furnish them with a bill of particulars of it. (Reed v. Marks, 56 App. Div. 272; Heidenreich v. Hirsh, 85 id. 319.) They know whether they have received money for booking the play referred to in the complaint, and if so the amount; they also know whether they have booked said play for the best possible terms and whether they have contracted with themselves and others jointly interested with them in theatres where said play was booked; It is perfectly apparent that they have better knowledge of the subject-matter of which the plaintiff complains than he has' and in ordér to establish his cause of action, if he has one, he doubtless will resort to their testimony or to the books and papers kept by them. A bill of particulars is never ordered when the party asking for it has as much or more knowledge on the subject than his opponent.'

The order appealed from must be reversed, with ten dollars costs, and disbursements, and the motion denied, with ten dollars costs.

Van Brunt, P. J., Patterson, O’Brien and Hatch, JJ., concurred.'

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.