and 140 New York State Reporter GAYNOR, J. The plaintiff made a requisition on the defendant, who is the clerk of Kings county, for a search against "Catherine Joyce, wife of Edward Joyce," and this action is against the said clerk for damages for negligence in omitting from his return a judgment against Cassie Joyce. "Cassie" is said to be a diminution of Catherine, like Katie, but if it be it is not generally known or used as such. We are referred to no authority which would sustain the conclusion that the omission of the judgment was negligence. The judgment is affirmed. Judgment of the Municipal Court affirmed, with costs. All concur. (121 App. Div. 585.) NORTON & GORMAN CONTRACTING CO. v. UNIQUE CONST. CO. et al. (Supreme Court, Appellate Division, Second Department. October 23, 1907.) 1. MECHANICS' LIENS-NOTICE-DESCRIPTION OF SERVICES OR MATERIALS. Under Laws 1897, p. 518, c. 418, § 9, subd. 4, providing for filing a notice of lien, such notice must specifically and definitely state the labor performed or to be performed, or the materials furnished or to be furnished. [Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Mechanics' Liens, §§ 234-236.] 2. SAME. * ** and placing the and the agreed A statement in a notice of lien that "the labor performed and the materials furnished was the moving of a building same upon the premises hereinafter named, price thereof is $3,460," is not sufficient to support a claim for the price of the building itself within Laws 1897, p. 518, c. 418, § 9, subd. 4, providing that such notice shall state the labor performed or to be performed, or materials furnished or to be furnished, and the agreed price or value thereof. [Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Mechanics' Liens, §§ 234-236.] Woodward and Gaynor, JJ., dissenting. Appeal from Special Term, Kings County. Action on a mechanic's lien by the Norton & Gorman Contracting Company against the Unique Construction Company and others. From a judgment for the plaintiff, defendants appeal. Reversed and new trial granted. Argued before WOODWARD, JENKS, HOOKER, RICH, and GAYNOR, JJ. Ralph K. Jacobs, for appellants. J. Stewart Ross, for respondent. HOOKER, J. This is an action to foreclose a mechanic's lien. The only reference in the notice of lien to the labor performed or the materials furnished was as follows: "(4) The labor performed and the materials furnished was the moving of a building from the north side of Pacific street and placing the same upon the premises hereinafter described and designated, and the agreed price thereof is three thousand four-hundred and sixty dollars." It is to be observed that the only claim stated was for the moving of the building and the placing of it upon other premises. The complaint was somewhat broader, claiming for the same moving and placing upon other premises, and, in addition, for the completing of the erection thereof. The amount claimed to be due by the plaintiff and mentioned in the decision is $3.557.20, $3,000 of which, however, is for the building itself; the balance being for something else. It is evident that the notice of lien is not valid to support a claim for the price of the building itself. It is held that the statement in the notice of lien as provided for in subdivision 4 of section 9 of the lien law (Laws 1897, p. 518, c. 418) must specifically and definitely state the labor performed or to be performed, or the materials furnished or to be furnished. Toop v. Smith, 181 N. Y. 283, 73 N. E. 1113; McKinney v. White, 15 App. Div. 423, 44 N. Y. Supp. 561. This has not been done in this case as far as the building is concerned. Judgment should be reversed, and new trial granted, costs to abide the event. All concur, except WOODWARD and GAYNOR, JJ., who dissent. (121 App. Div. 607.) SQUIRES v. KISSAM. (Supreme Court, Appellate Division, First Department. October 25, 1907.) PLEADING-BILL OF PARTICULARS. Where the complaint in an action by an attorney for services rendered and moneys expended alleged that between dates named plaintiff rendered services to defendant of the reasonable value of an amount specified and expended a certain other amount, and the bill of particulars served on de fendant's demand consisted mainly of dates of certain interviews and consultations, writing and receiving letters, and such an item as "To services in defendant's interest in 17 foreclosure actions covering D. properties and in bankruptcy proceedings" between dates named, defendant was entitled to a further bill of particulars, showing plaintiff's services in each of the specified actions or proceedings and his valuation thereof as to each action or proceeding, and also other services, if any, of a general nature outside such actions or proceedings, and his valuation thereof with such particularity as to indicate the method of computing the bill. [Ed. Note.-For cases in point, see Cent. Dig. vol. 39, Pleading, §§ 954, 959-960.] Appeal from Special Term. Action by Grant Squires against Leila H. B. Kissam. From an order denying her motion to require plaintiff to make and serve a further bill of particulars, defendant appeals. Order reversed, and motion granted. Argued before PATTERSON, P. J., and INGRAHAM, LAUGHLIN, CLARKE, and HOUGHTON, JJ. Edmonds Putney, for appellant. PER CURIAM. Plaintiff is an attorney at law, and brought this action to recover for professional services rendered and for moneys expended in connection with the rendition of such services. The com and 140 New York State Reporter plaint alleged that between the 5th day of March, 1901, and the 1st day of July, 1902, plaintiff rendered services to the defendant, upon her retainer and as her attorney and counsel, of a reasonable value of $2,600, and paid out and expended for defendant in connection with aforesaid services, at her request, the sum of $641.11, and that no part of said indebtedness had been paid, except the sum of $241.11 on account on said disbursements, and demanded judgment for the amount. remaining due. The answer was a general denial. The action was instituted about five years after the rendition of the services alleged, and the defendant avers that the plaintiff has never rendered the defendant any bill for services, and that the suit was brought without even a demand for payment. The defendant served upon the attorney for the plaintiff a demand for a bill of particulars, and a paper purporting to be a bill of particulars in accordance with said demand was thereafter served, consisting of some 11 printed pages of items, consisting mainly of dates. of certain interviews and consultations, writing and receiving letters, and such an item as "From April 4, 1901, to June, 1902, to services in defendant's interest in 17 foreclosure actions covering Dexter properties and in bankruptcy proceedings.' Although voluminous and apparently detailed, the bill furnishes no real information. As said by this court in Aub v. Hoffman, 120 App. Div. 50, 104 N. Y. Supp. 913: "We think that the defendant is entitled to a bill of particulars under this complaint, and that she should be informed in what manner the plaintiffs have made up their lump charge, in which they shall enumerate each of the suits of proceedings instituted by them and the details of the services claimed to have been performed in each of those suits or proceedings, and place a valuation upon the services rendered in each one; that is, we do not require a valuation of each detail, but a valuation of the services rendered, which may be by way of a lump sum for each of the suits or proceedings, and if there be, outside of the specific suits or proceedings, other services of a general nature, they should be enumerated with such particularity as to indicate the method of computing the bill. It is clear that, unless such a bill of particulars is furnished, it would be impossible upon this complaint for a defendant to properly prepare for trial. There would be no way in which the charges made for the services rendered could be submitted to other members of the profession for the purpose of obtaining expert evidence to submit to the jury upon the question of the value of the services claimed for." The order appealed from should be reversed, with $10 costs and disbursements, and the motion granted as indicated, with $10 costs. (121 App. Div. 589.) CITY OF MIDDLETOWN v. ÆTNA INDEMNITY CO. OF HARTFORD, CONN., et al. (Supreme Court, Appellate Division, Second Department. October 23, 1907.) PRINCIPAL AND SURETY-DISCHARGE OF SURETY-CHANGE OF CONTRACT. A map used to acquire a right of way of given width for a pipe line showed only the wavy center line thereof, and not the side lines, which were to be determined by measurements from the center line. The same map was used in the specifications and contract for the pipe line, which stated that the general width of the right of way was 66 feet. The contract did not state that the pipe line was to follow the center line; but it provided that the work should be done under detail plans to be furnished by the engineer as it progressed, and that the trenches should be straight and curved as directed. With the assent of the contractor's surety a change was made, substituting a tunnel of lower level for a deep trench. In excavating the tunnel the contractors followed a straight line from the point of beginning of the center line, instead of following the wavy center line, which the city engineer allowed; but they did not go outside the right of way. Held, that following the straight line, instead of the crooked one, was not such a noncompliance with, or change of, the contract as to release the contractor's surety, and especially as it decreased the trouble and expense, and was the only practical method of constructing the tunnel which had been substituted for the trench. [Ed. Note. For cases in point, see Cent. Dig. vol. 40, Principal and Surety, $ 162, 165.] Hooker and Rich, JJ., dissenting. Appeal from Trial Term, Orange County. Action by the city of Middletown against the Etna Indemnity Company of Hartford, Conn., and others. From a judgment for defendants, plaintiff appeals. Reversed, and new trial granted. See 100 N. Y. Supp. 1110. Argued before JENKS, HOOKER, RICH, MILLER, and GAYNOR, JJ. Thomas Watts, for appellant. Clarence Lexow, for respondents. GAYNOR, J. The plaintiff in supplying itself with water made a contract for the construction of a pipe line 19,300 feet long. A section of it 2,200 feet long was to be laid in a deep tunnel instead of a deep trench, by a modification of the contract in which the surety joined. The contractors abandoned the work after doing part of it, and this action is against their surety on its bond for performance. The complaint was dismissed on the close of the plaintiff's evidence on the ground that the pleaded defence that the plaintiff and the contractor changed the contract by an agreement made between them without the consent of the surety was made out. The claim is that the tunnel through the said section of 2,200 feet was changed in the detail of doing the work from a curved line to a straight line. The contract and specifications show that the pipe line was of 20-inch pipe and was to be laid in a right of way of the general width of 66 feet acquired by the city, the plaintiff. The map used to acquire the right of way showed the centre line thereof, but not the side lines. They were determinable by measurements from the centre line, the width of the right of way being given. This same map was used in the specifications and contract to show where the pipe line was to be laid. centre line was all that it showed, as already stated, but the specifications, which with the map were made part of the contract, stated that the general width of the right of way for the pipe line was 66 feet. The contract does not say in words that the pipe line is to follow the said centre line, but the defendant, the surety, claims that that is the contract, nevertheless, by reason of the said map being part thereof. The This may be granted and still the dismissal would be error. The evidence, including the map, shows that the right of way over the said section of 2,200 feet curved or waved to right and then to left and 140 New York State Reporter several times, instead of its sides being straight lines. There was no agreement made changing the contract for a tunnel; but in excavating the tunnel the contractors did not follow the curving or waving centre line of the right of way, but a straight line, from the point of beginning on the centre line, and the city's engineer in charge allowed this, and after the abandonment the city completed the work in the same way. In this way the tunnel three times deviated from the centre line and returned to and crossed it. Sometimes the deviation was very little, and once as far as 38 feet, but always keeping within the right of way, which along there was 99 feet wide. The result was that the tunnel was 16 inches shorter than if it had followed the centre line, and cost at least that much less, the contract price being $9 the running foot. The result avoided was the great difficulty, to say the least, and the extra expense, of following the centre line in excavating so small a tunnel (5 feet wide by 6 high) on a constantly curving line through rock; for the evidence is that it is impracticable to do so. And the evidence shows that there was no reason at all to follow the centre line; that it was wholly unnecessary; that it would affect the use of the tunnel in no way to make it on a straight line instead of constantly curving or waving; and moreover that with such small tunnels it was the custom to deviate to avoid difficulties and obstacles. No agreement changing the line of the tunnel having been made, the only question presented is, therefore, whether the contract was substantially carried out (if, indeed, the case has any standing, the allegation of the answer of an agreement by the parties changing the contract having failed). If it was, the plaintiff is entitled to recover and the dismissal was error. The question is the same as though the contractors had an action for the contract price, and the city denied the completion of the contract, in that the tunnel deviated from the centre line of the right of way. Such a defence could not prevail. A substantial compliance would enable the contractor to recover and it could not be said that there was not such a compliance, for the deviation would be harmless and immaterial, and made in good faith. Glacius v. Black, 50 N. Y. 145, 10 Am. Rep. 449; Nolan v. Whitney, 88 N. Y. 649; Rowe v. Gerry, 112 App. Div. 358, 98 N. Y. Supp. 380. In an action against sureties, the rule of construction of the principal contract is the ordinary rule of construction of contracts. The rule that the liability of sureties is strictissimi juris does not apply thereto, but only to the question whether another contract has been substituted, in which case the surety cannot be held, for the contract he went surety for no longer exists. Smith v. Molleson, 148 N. Y. 241, 42 N. E. 669; Ulster Co. Savings Inst. v. Young, 161 N. Y. 23, 55 N. E. 483. The question here is whether the principal contract was performed, and it cannot be said as matter of law that it was not. When the strict letter of the contract is examined, it will also be seen that it is not that the trench and tunnel shall strictly adhere to the centre line, for it provides that the work shall be done under detail plans to be furnished by the engineer as it progresses, and that "the trenches shall be straight and curved as directed," i. e., by him; and the substitution of the tunnel for the trench on the section in question left this still in force. |