#### George Bernard Shaw, Respondent, *v.*Herbert S. Stone and Melville E. Stone, Jr., Defendants, Impleaded with Duffield & Company (Formerly Fox, Duffield & Co.), Appellant.

First Department,

March 6, 1908.

Pleading — assignment of copyright in violation of trust — bill of particulars as to damage.

Where an action to recover damages from a publisher for transferring a copyright in breach of a trust to hold the same for the benefit of the plaintiff is not brought for an infringment of the copyright or for damages for the sale of books' in violation thereof, hut merely for damages caused by reason of the unlawful retention of the copyright, the defendant is entitled to a bill of particulars of the alleged damage, especially when it is admitted-that the plaintiff is ignorant of the theory upon which, he proposes to claim -damages and his right thereto presents a new. legal question.

Appeal by the defendant, Duffield & Company',' from an order of the Supreme Court, made at the New York. Special Term and enteredin the office of the clerk of the county'of New York on the 29th day of November, 1907, denying the said d'efendant’s motion for a bill of particulars.

*Frederick S. Duncan,*for the appellant.

*Selclen Bacon, Henry W. Sackett*with him on the brief *\Sackett, Chapman & Stevens,*attorneys], for the respondent.

*625Clarke, J.:

The amended complaint, alleges that Herbert S. Stone *&*Co., under a certain agreement with George Bernard Shaw, took out four copyrights in the United States on books written by Shaw, holding these copyrights in trust for the benefit of Shaw, and meanwhile publishing the books under a license from Shaw. It is further alleged that in 1905 Shaw revoked the lieénse and demanded a reassignment of the copyrights from the defendants Stone, but they, instead of reassigning them to Shaw, assigned them on March 3, 1906, to Dufiield & Co., said Dufiield & Co. having notice of Shaw’s claim of ownership of the copyrights. The complaint .alleges that Dufiield & Co. declined to assign the copyrights in question to Shaw, and that by reason of such refusal Shaw suffered serious damage to the extent of at least $200 a day.

The answer of the defendant Duffield & Co. admits that on March 3, 1906, it took an assignment of the copyrights in question from the defendants Stone, but denies that it had the notice alleged of rights claimed by Shaw in said copyrights. The answer further alleges that after the commencement of this suit, and after investigation of Shaw’s claims, the defendant Duffield & Co., without admitting the correctness of Shaw’s claim, but in order to avoidlitigation, assigned the copyrights to Shaw on the 20th day of December, 1906.

It would appear, therefore, that the only issiie between the. plaintiff. and the defendant Duffield *&*Co. is as to whether any damage has been suffered by Shaw because of the retention of these copyrights by Duffield'& Co. from March 3,1906, to December 20,1906, and if so, as to the amount of such damage.

The action is not brought for the infringement of copyrights or damages for the sale of books in violation of the copyrights. The complaint .alleges that Shaw has suffered $200 a day damage by reason of the unlawful retention of the copyrights by Duffield & Co. From March 3, 1906, to December 20, 1906, this would amount to $58,400. There is not a word in the complaint as to the nature df this alleged damage or the facts upon which the claimris based.

The defendant made a motion for a bill of particulars of plaintiff’s alleged claim for damages, and said .motion having been denied, brings this appeal from the order entered thereon. The *626object of a bill of .particulars is to make certain that which-is uncertain, to limit the issues and to advise the defendant of the nature of the proof which it will be required to meet. This is an extraordinary action. - How and in what way the plaintiff has been damaged by the alleged retention of the copyrights is not disclosed in the complaint. Neither in his brief nor in his argument before this court upon'this appeal did the plaintiff disclose the theory upon which he claims damages should'be assessed. In fact, the learned counsel for the respondent says in his brief, *“*What damage Mr. • Shaw can show is a very difficult question of law proper to be determined upon the trial of the cause as the evidence is presented. Just what items of damage Mr. Shaw can obtain under the law is perhaps-a new question. * *■. * " The matter is entirely one for the exercise of the chancery powers of the- court in such a case.”

The bare statement of such propositions makes it evident, as it seems to me, that a case is presented which requires a bill of particulars. If the plaintiff who has brought his action is ignorant of the theory upon which he proposes to claim damages, liow is .it possible for the defendant properly to prepare itself to meet a claim not yet formulated? The object of pleadings is to present clear and definite issues. The object of a bill of particulars is to further limit and define- such issues. It is- the defendant’s right to be advised before the trial as to what it shall be- called upon to meet upon the trial, and the avowed helplessness of the plaintiff to now formulate his demand is the very reason whytlie defendant should not be compelled to go .into court until the plaintiff can state his claim. • ■

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs .to the appellant. ■

■ Patterson, P. J., Ingraham, McLaughlin-and Scott, JJ.,. concurred. - ■

Order reversed, with ten dollars costs and. disbursements, and ' motion granted, with ten dollars costs.