There seems to be a distinction in Code, § 531, between “items of an amount” and “particulars” of a claim. Thus, in the well-known Tilton v. Beecher, 59 N. Y. 176, and Dwight v. Insurance Co., 84 N. Y. 493, cases, it could not be said that there was an account of which items were given, but the party was required to furnish particulars of the claim. . This action is to foreclose a mechanic’s lien. The defendant sets up as a counterclaim, in substance, that the plaintiff entered into a written contract, set forth therein, with defendant to build a certain building; that the plaintiff has failed to perform the contract; that thereby the defendant has been put to great expense in completing the same; also that he has suffered liquidated damages by the failure to complete, and also loss in rent by the same failure. How this alleged counter-claim is not upon an account which defendant has against plaintiff; it is on the breach of plaintiff’s contract, and the statement of defendant’s expense is a statement of the damages resulting. The plaintiff, therefore, if entitled to relief under section 531, must seek for what is there called a “bill of particulars” of the claim, not for items of an account. This being so, the defendant insists that the mere affidavit of the attorney with the pleadings is not enough; that there should be the affidavit of the plaintiff, or excuse made showing the necessity of ordering such bill of particulars. I think the position of defendants is correct. Hoeninghaus v. Chaleyer, 4 N. Y. Supp. 814; Gridley v. Gridley, 7 Civil Proc. R. 215; 1 Rum. Pr. 278. It is certainly the general rule that affidavits, excepting such as relate to mere matters of practice, ought to be made by the parties rather than by the attorneys. As above stated, this counter-claim is not on an account; it is for damages caused by an alleged breach of the contract. If the plaintiff needs to be further informed of the particulars in respect to which he is alleged to have broken the contract, I think it is for him to make the necessary affidavit, and not for his attorney.
The present motion is denied, with $10 costs, without prejudice to another motion to direct a bill of particulars’.