Opinion
March 19, 1915.
Wales F. Severance, for the appellant.
Hugo H. Ritterbusch [ Leon Lewin with him on the brief], for the respondent.
This action is brought to recover damages for an alleged wrongful discharge of the plaintiff from the employ of the defendant. The defendant put in issue all of the allegations of the complaint, with the exception of those showing that it is a corporation and that it entered into a contract for the employment of the plaintiff as alleged; and for a separate defense alleged, among other things, in justification for the discharge, that the plaintiff violated his contract and his duty to the defendant, in that, while acting as purchasing agent of merchandise for it, he on divers occasions demanded, received and accepted for his own use from "divers merchants, and others" money considerations, clothing and other merchandise, as a condition of "approving and passing any and all merchandise purchased from" them by him; and compelled "certain employees of the defendant, to perform work, labor and services during working hours, in repairing and manufacturing clothing and other merchandise for his personal benefit and use, and that of other persons;" and "at divers times" during the period of his employment, for his personal benefit, "compelled certain employees of the defendant to perform work, labor and services outside of the defendant's premises during working hours;" and "at divers times" during said period "failed and neglected to devote his entire time to the defendant's business, by absenting himself during business hours, all of which violations on the part of the plaintiff were without the knowledge and consent of the defendant." These facts constitute an affirmative defense, and the burden of proof with respect thereto rests on the defendant. ( Spitz v. Heinze, 77 App. Div. 317.) There is, however, the same authority for requiring a bill of particulars of an affirmative defense as for requiring one of a plaintiff's claim. ( Spitz v. Heinze, supra.)
The first demand for a bill of particulars is of the times and occasions, including dates and places and the names of the persons from whom defendant claims that plaintiff accepted for his own use any consideration or benefit as a condition of approving and passing merchandise purchased by him for defendant. The material part of that demand is, of course, with respect to the names of the persons; and they are required to be given, not on the theory that the plaintiff is entitled to a discovery with respect to the defendant's evidence, but that it is necessary in order that the plaintiff may not be taken by surprise and put to needless preparation for the trial, and may be prepared to meet the evidence adduced in support of the charge, which, on the pleadings, stands denied. ( Taylor v. Security Mut. Life Ins. Co., 73 App. Div. 319; Spitz v. Heinze, supra.) These are serious charges, and for the same reason the defendant should be required to state, so far as it is able to do so, the times and places, and in order that the plaintiff may be prepared to show, if it be the fact, that he was elsewhere, or that he may call other witnesses to contradict the testimony offered by the defendant. ( American Woolen Co. of New York v. Altkrug, 137 App. Div. 621; Knickerbocker Trust Co. v. Packard, 109 id. 421; Smith v. Anderson, 126 id. 24; Spitz v. Heinze, supra; Sundheimer v. Barron Co., 62 Misc. Rep. 263.) The plaintiff is for like reason entitled to know the names of the employees of the defendant whose services it claims he used during business hours for himself or for others; and the times and places, as near as may be, of those performed elsewhere than at defendant's place of business; but we are of opinion that it would be unreasonable to expect defendant to be able to specify the particular days and hours when plaintiff exacted from its employees services performed at its place of business for his account. The second and third demands of the plaintiff, therefore, should have been granted to the extent herein stated; but the nature of the services is immaterial, as is also the length of time devoted thereto. The fourth demand is that the defendant specify the times when it claims he failed and neglected to devote his entire time to its business by absenting himself therefrom, and he asks that days and hours be given. This demand was too broad and was properly denied, for it is manifest that the employer should be at liberty to show that the employee neglected his duties, generally or from time to time during the course of the employment, without being confined to precise days and hours, and we so held in Spitz v. Heinze ( supra).
It follows that the order should be reversed, with ten dollars costs and disbursements, and motion granted to the extent herein indicated, with ten dollars costs.
CLARKE, SCOTT, DOWLING and HOTCHKISS, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted to extent stated in opinion. Order to be settled on notice.