Sec. 336a. Bill Of Particulars (P. 340)

A bill of particulars of a broker's claim may be had, especially where the principal denies having employed the broker, it having been held that the rule is well settled that where a party is without information concerning a contract alleged to have been made, or other negotiations or proceedings alleged to have been had or taken by him through an agent, he is entitled to a bill of particulars giving the name of the agent, and specifying the time and place, and to a copy of any contract or other writing.8

5 Atkinson v. Pack, 114 N. C. 597; 19 S. E. 628; Robinson v. Oklahoma F. I. Co.. 155 Pac. (Okl.) 202 (1916).

6 Moloney v. Brennan. 138 App. Div. 510; 123 N. Y. Suppl. 375 (1910).

7 Reis Co. v. Zimmerli. 155 App. Div. 260; 140 N. Y Suppl 3 (1913).

8Astor Mortgage Company v. Tcnncy, 157 App. Div. 361; 142 N. Y. Suppl. 265 (1913).

Where the complaint in a broker's action for commissions is not based upon the fair value of the services but upon a specific contract entitling him to a certain percentage of the aggregate rentals to be received by his principal, the plaintiff will not be required to give a bill of particulars stating the amount of time used by him in procuring the lease, as that is immaterial.9

Sec. 336b. Preference Of Broker's Action On Trial Calendar (P. 340)

Naturally, the broker usually desires a speedy trial of his action for commissions. In localities where trial calendars are overcrowded with litigation, and delays result, either code provisions or local rules give preference to certain classes of cases. Actions for work, labor, and services are frequently so preferred, and it has been sought to place in that category broker's actions for commissions.

In one case, in commenting upon a local preference calendar rule, it was said:

"This action, by broker for commissions on sale of land, is sought to be advanced under Kings County Calendar Rule 10. Formerly this rule preferred 'any action on contract,' which clause was stricken out in 1909. After seeking to have the cause preferred by the calendar clerk as an action on contract (which the clerk refused), plaintiff now moves to prefer the cause as 'for work, labor and services,' within Rule 10 as amended. This language usually means ordinary employment analogous to 'wages, salary or compensation for services,' as used in the corresponding Calendar Rule V in the First Department. The rule giving preference over other suitors should not have a broad construction, but rather should be limited to the ordinary import of this language, which primarily designates labor claims.10 It not being shown that actions for brokers' commissions have been so preferred under the work and wages preference, either in the First or Second Departments, the present application is denied."11

In another case, the appellate division of the same court held that an action for broker's commissions was entitled to preference on the calendar under the same rule above mentioned.12

9 Fragner v. Fischel, 141 App. Div. 869; 126 N. Y. Suppl. 478 (1910). 10 Bristor v. Smith, 22 Misc. 55, approved in 158 N. Y. 157. 11 St. John v. Kloppenberg, 46 N. Y. Law Journal, 360 (Oct. 24, 1911). 12 Sprague v. Tangiers Dev. Co., 152 App. Div. 921; 137 N. Y. Suppl. 746 (1912).

Sec. 337. Pleading Acts Done By Agent (P. 340)

While acts and contracts may be stated according to their legal effect, it has been asserted that an act or promise by a principal (other than a corporation), if in fact proceeding from an agent known to the pleader, should be so stated.13

12 Conn. Practice Book, Sec.144.