. The defendant was not obliged to state whether the agreement upon which his counter-claim rests was in writing or not. In the language of the court of appeals, it was sufficient for him to allege the contract and breach, without any specification of the evidence thereof. Tuttle v. Hannegan, 54 N. Y. 686. The plaintiff in the case sought to recover damages for a breach of a contract, and on the trial offered in evidence a written instrument in the form of a bond containing the agreement. It was objected that the action should have been brought thereon, but the court admitted it. It was held that no error was committed, and for the reason stated.
The purchases and sales alleged to have been made under the agreement are not stated in detail, but nevertheless the cause of action is stated with sufficient definiteness to make "apparent what the defendant claims. It is stated generally, it is true, and in such a mode as to show that there are items constituting it. That, however, does not give the right to the remedy which may sometimes be invoked of making the averment more definite and certain. It can only be sought when the allegations are so indefinite that the precise nature of the charge or defense is not apparent. Here there is no doubt of the nature of the defense. The plaintiff is not, however, remediless, inasmuch as he may ask for the particulars, and obtain them. Tilton v. Beecher, 59 N. Y. 176. In this case the border line between these remedies seems to ha've been reached, and illustrates how slight a difference may exist between the conditions requiring the application of the one or the other. It appears to be settled that, if the charge or defense be definitely stated, although the statement involves details, it is sufficient to put the party to an application for a bill of particulars, and compels him to resort to that remedy, although the result of either application would be the same. See Jackman v. Lord, 9 N. Y. Supp. 200; Tilton v. Beecher, supra. The order appealed from should for these reasons be reversed, with $10 costs, and the disbursements of this appeal. All concur.