¶1The defendant applied to the court below for a bill of particulars as to several of the allegations of the complaint. The complaint alleged the making óf a contract between the plaintiff and the defendant; that there was a breach of the contract by the defendant ; that subsequently the defendant requested the plaintiff to proceed with the said work and promised that if he would do so the defendant would deliver to the plaintiff certain notes. The defendant asked for a bill of particulars of the time and' place when this *284new agreement was alleged to have been made. We think the plaintiff was entitled to such bill of particulars. The allegation as to the new agreement is extremely indefinite. The time and place at which it was made were not stated, and it would he manifestly unsafe for the plaintiff to proceed to trial unless he could have such particulars. The complaint also alleged that the defendant waived the provisions in the said agreement providing that the said premises should he completed by November 1, 1896, and that the premises should be erected to the satisfaction and under the direction of .'the architect mentioned in said agreement; that the value of additions to or omissions from the work provided for by said contract, should be stipulated in writing and signed by the parties to said ' agreement; and that the payments and other considerations mentioned in said agreement should be made to the plaintiff, provided-a certificate should he obtained and signed by the said architect when each of the considerations should become due. We think that the defendant was entitled to a bill of particulars specifying the act or acts or statements from which such waivers as are alleged in the 4th paragraph of the complaint could be implied. It would he manifestly impossible for the defendant to be prepared for- trial unless he-was in some way apprised of the nature of the waiver and whether it was by express agreement or to he implied from his acts or declarations.
¶2The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion granted to the extent-indicated, with ten dollars costs.
¶3Van Brunt, P. J., Patterson, O’Brien and McLaughlin, JJ., concurred.
¶4Order reversed, with ten dollars costs and disbursements, and motion granted' to the extent indicated, with ten dollars' costs.