
    Theodore P. Spitz, Appellant, v. Otto C. Heinze and Others, Respondents.
    
      Discharge of a servant — defense that it was for good cause — hill of particulars thereof.
    
    Where a servant brings an action against his master to recover damages for his wrongful discharge, the defense that the plaintifE was discharged for good and sufficient cause is an affirmative one which must be pleaded and proved by the defendant.
    The same authority exists for requiring a bill of particulars of an affirmative defense as for requiring a bill of particulars of the plaintiff’s claim.
    In granting a bill of particulars the court should so exercise its discretion as to avoid compelling the party required to serve the bill of particulars to make an undue disclosure of the evidence on which he relies to establish the facts in issue.
    Appeal by the plaintifE, Theodore P. Spitz, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 30th day of June, 1902, denying the plaintiff's motion for a bill of particulars of the counterclaim set up in the defendant’s answer.
    
      Wales F. Severance, for the appellant.
    
      Dcmiél P. Hays, for the respondents.
   Laughlin, J.:

The action is brought to recover damages for a breach of contract of employment. The plaintiff alleges that on the 13th day of April, 1900, he was employed by the defendants to manage their domestic hosiery department for the term of three years from the 1st day of June, 1900 ; that his compensation was to be forty per cent of the net profits of that department, the expenses to be deducted being stated; that they were to advance to him the sum of $4,000 per annum in equal monthly installments, such advance to be deducted from his portion of the net profits, but he was not to be required to account therefor in case his share of the net profits should not equal that sum; that he was to devote his entire time, energy and intelligence to the management of the department and to use his best efforts to make the same profitable; that the management and control of the business was to be left in his hands subject to the right of the defendants “ to veto any proposition ” he “ might wish to go-into; ” that on the 9th day of December, 1901, while he was engaged in his employment under said contract, he was discharged by the defendants and excluded from their place of business.

The answer admits the employment and the discharge, but alleges-that the discharge was for cause, and sets up fourteen grounds as constituting the cause of his ■ discharge. It is with reference to these grounds of the discharge that the plaintiff desires a bill of particulars.

This is an affirmative defense, and the burden is upon the defendants of both alleging and proving that he was discharged for good and sufficient cause. (Linton v. Unexcelled Fireworks Co., 124 N. Y. 533; Raeder v. Ibert, 39 N. Y. St. Repr. 121.)

There is the same authority for requiring a bill of particulars of an affirmative defense as for requiring a bill of particulars of the plaintiff’s claim. (Code Civ. Proc. § 531; Dwight v. GermaniaLife Ins. Co., 84 N. Y. 493; Tilton v. Beecher, 59 id. 176.)

Bills of particulars should be required when necessary for the purpose of preventing surprise and needless preparation, but the discretion of the court should be so exercised as to avoid an undue disclosure of the evidence of the adverse party by which he may establish the facts at issue. (Taylor v. Security M. Life Ins. Co., 73 App. Div. 319; Baltimore Machine Works v. McKelvey, 71 id. 340 ; Mussinan, v. Willner Wood Co., 69 id. 448 ; English v. Westchester Electric R. Co., Id. 576; Bell v. Heatherton, 66 id. 603.)

In the case at bar the plaintiff’s demand for a bill of particulars is altogether too broad. It is alleged in the answer that the plaintiff failed to devote his entire time, energies and intelligence to the business ; that he did not use his best efforts to make the business profitable; that he was not attentive to business, remained away all day on Saturdays and frequently stayed away on other business days, claiming that he had been detained by private matters; that he arrived after office hours in the morning and departed before the close of business hours for the day. We think that the defendants should not be limited in their evidence on these subjects by a bill of particulars, and that the answer apprises the plaintiff of all that is essential for him to know to enable him to defend against the charges. This defense, though stated in general language, is sufficiently definite, and more cannot be required without unduly calling for the evidence itself.

It was also alleged in the answer that the plaintiff was insolent and impertinent to customers and sent to them irritating and unnecessarily severe and impertinent letters and antagonized customers “ thereby causing defendants to lose many customers and injuring their business.” Whether the plaintiff’s conduct in this regard resulted in the loss of customers or injury to the business is not material. If he was insolent and impertinent to customers, such conduct was calculated to result in a loss of customers and an injury to the business, and doubtless justified his discharge. It is evident that the defendants who placed the plaintiff in charge of the business are not themselves in a position to know these facts. They must depend for their knowledge either upon information from other employees or from the customers. It might be impossible for them to specify the customers, for the names might not be known, and we think it would be unreasonable to require them to further particularize a defense of this kind by giving dates or circumstances. So far as the defense relates to his letters they are the best evidence, and there is little danger that he can be taken by surprise by their non-production, for proof of their loss would ordinarily have to be made by the customers to whom they were sent.

We think the plaintiff is entitled to a bill of particulars specifying (1) which defendant or defendants it is claimed he was impertinent to, which defendant or defendants gave him orders, instructions and directions that he failed to obey, and what the orders, instructions and directions were; (2) upon what goods the plaintiff, contrary to the instructions and directions of the defendants, raised the prices; (3) the names of the firms who were customers of the defendants from which it is claimed that the plaintiff solicited patronage and offered goods at a price different from that previously offered by the defendants, specifying the price; (4) what expenses were incurred by the plaintiff contrary to the directions and instructions of the defendants and charged to the defendants giving approximately the date or dates; (5) what mills the plaintiff attempted to contract with without consulting defendants; (6) what employees the plaintiff attempted to secure contrary to the instructions of the defendants, giving the names and approximately the dates; (7) what goods were purchased by plaintiff above the market price, and either the mwrltet price or the date; (8) what books of account it is claimed the plaintiff retained in his possession; and (9) what contracts made with manufacturers the plaintiff violated, giving the names of the manufacturers, dates of contracts and particulars of violation. These are the only items of which we think the plaintiff is entitled to a bill of particulars.

It follows, therefore, that the order should be reversed, with ten dollars costs of appeal and disbursements, and the motion for a bill of particulars granted, as indicated in this opinion.

Van Brunt, P. J., Patterson, Ingraham and Hatch, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion for bill of particulars granted as indicated in opinion.  