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Posner v. Rosenberg

149 A.D. 270 Court Second Department, Decision date 1912-02-23 Docket Appeal No. 1 English

Delivered by Burr, J.:

Contents

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Sarah C. Posner, Respondent, v. Max Rosenberg and Arthur H. Spero, Copartners, under the Firm Name of Max Rosenberg Company, Appellants.
(Appeal No. 1.)
Second Department,
February 23, 1912.

Headnote

Pleading — bill of particulars—request for defendant’s “claim” — when order for particulars improper — precluding giving of evidence.
A demand for a bill of particulars of the defendant’s “claim” includes both defenses and counterclaims alleged.
An order for a bill of particulars should not require the defendant to disclose to the plaintiff substantially all the evidence in his possession necessary to support his claim.
It is premature to include in an order for a bill of particulars an order precluding the party from giving evidence if he fails to furnish the particulars required.
Order for a bill of particulars examined and modified.
Appeal by the defendants, Max Rosenberg and another, copartners, etc., from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 22d day of November, 1911, granting the plaintiff’s motion for a bill of particulars.
Charles A. Brodek, for the appellants.
Thomas J. O’Neill, for the respondent.

Defendants by their answer set forth various violations of plaintiff’s contract of employment both as a defense and as the basis of a counterclaim. Plaintiff demanded a bill of particulars of defendants’ claim. The word “claim” is sufficiently broad to include both defenses and counterclaims. (Kelsey v. Sargent, 100 N. Y. 602 .)

To comply with the order granted by the court at Special Term defendants would be obliged to disclose to plaintiff substantially all of the evidence in their possession necessary to

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support their claim. This is in violation of well-established rules. (Smith v. Anderson, 126 App. Div. 24 ; Smidt v. Bailey, 132 id. 177; Nickel v. Ayer, 141 id. 576.)

The provisions of the order precluding the giving of evidence for failure to furnish all the required particulars or any part thereof is premature. (Smith v. Bradstreet Co., 134 App. Div. 567 ; Hein v. Honduras Syndicate, 138 id. 786; Cossman v. Ballin, 141 id. 68.)

The order should be modified by striking out the provision precluding the giving of evidence and so as to require defendants within five days after service of a copy of the order to be entered herein and notice of the entry thereof to serve a verified bill of particulars in regard to the following matters only:

1. The names and (if known to defendants) the addresses or places of residence of those employees of defendants whom plaintiff caused to leave their employ and enter the employment of their competitors in business and the names and addresses of such competitors.

2. The names and addresses of defendants’ competitors in business for whose use plaintiff purchased patterns, designs, models, dresses and costumes.

3. The names and addresses of defendants’ competitors in business to whom plaintiff furnished styles, patterns of dresses and costumes used by defendants in their business or to whom she divulged and disclosed trade and manufacturing secrets and secret information and valuable knowledge and information used, owned and acquired by said defendants, and the character of such secrets, information and knowledge.

4. The names and (if known to defendants) the addresses or places of residences of those employees of defendants whom plaintiff sought to entice to leave their employ and enter the employment of their competitors in business, and the names and addresses of such competitors.

5. The names and addresses of those individuals, firms and corporations with whom, prior to September 19, 1911, plaintiff sought to make arrangements to carry on business on her own account.

6. What orders, directions and regulations of defendants plaintiff failed and refused to obey.

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As thus modified, the order appealed from should he affirmed, without costs.

Jenks, P. J., Hirsohberg, Woodward and Rich, JJ., concurred.

Order modified in accordance with opinion, and as so modified affirmed, without costs.

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