
    Margaret Macaulay, Appellant, v. Edgar C. Anthony, Respondent.
    (Supreme Court, Appellate Term,
    February, 1910.)
    Bill of particulars — When authorized — Non-performance of contract.
    In an action to recover damages for wrongful discharge, where the answer alleges that the discharge was for and on account of the failure of the plaintiff to perform her duties as saleswoman, the plaintiff is entitled to a bill of particulars.
    Appeal by the plaintiff from an order of the City Court of the city of ¡New York, denying plaintiff’s motion for a bill of particulars.
    Kenneson & Emley, for appellant.
    Leon Lewin, for respondent.
   Per Guriam.

Plaintiff sues for damages for wrongful discharge from employment. For an affirmative defense the answer alleges that the discharge was “for and on account of the failure to perform her duties as saleswoman.” She is entitled to a bill of particulars of this very vague and general allegation. Spitz v. Heinze, 77 App. Div. 317. The defense is not any the less" an affirmative one because of the phraseology of the complaint in stating that up to her discharge “ she continued to perform ” her duties. That she continued in the employment of the defendant was all she was obliged to prove to establish a prima facie case.

The order should be reversed, with ten dollars costs and disbursements to appellant to abide the event, and the motion granted.

Present: Seabury, Guy and Whitney, J3".

Order reversed, with ten dollars costs and disbursements to appellant to abide event, and motion granted  