Opinion
November 14, 1906.
John D. Eckert, for the appellant.
John G. Van Etten, for the respondent.
The last defense set up in this answer is substantially this: That the plaintiff was rightfully discharged, because for a long time previous thereto he had "persisted in a course of conduct antagonistic to defendant's * * * superintendent, injurious to and destructive of the discipline among the employees at defendant's said works." No further facts are given; no other or more specific statement of defendant's claim is made. Manifestly, the plaintiff is not, by such a general averment, fairly apprised of the facts constituting the new matter upon which the defense is based, and he is entitled to acquire, under some method of procedure, the information that is so lacking.
The court below has not stated any grounds upon which this motion was denied, and it is possible that it was refused on the ground that the motion should have been under section 546 of the Code of Civil Procedure for an amendment of the pleading, so as to make it "definite and certain," rather than under section 531 for a bill of particulars. If it appeared from the record that such a position had been taken, an examination of that question would be required here; but inasmuch as it has not, and inasmuch as there are many decisions that hold under circumstances similar to this, that a bill of particulars may be granted ( Spitz v. Heinze, 77 App. Div. 318; Taylor v. Security Mutual Life Ins. Co., 73 id. 323), we consider here only the question whether justice does not demand that plaintiff be informed with more particularity what facts defendant intends to prove against him to establish the "course of conduct" to which it refers.
While we are not disposed to interfere with the discretion of the court below, we think in this case that it is so clearly apparent that the plaintiff has not, as yet, been apprised of the specific grounds upon which defendant claims the right to discharge him, that this motion should not have been denied. To state that plaintiff's course of conduct was antagonistic to the superintendent, or that it was injurious and destructive to discipline among the employees, states nothing but a conclusion of the defendant based upon certain facts claimed to be known to it, and of which the plaintiff is not informed. Evidently the plaintiff is not prepared to meet upon trial such a claim. He is not thereby informed with reasonable certainty the real issue tendered him, nor can he intelligently prepare to meet it until the acts, or omissions, which constitute the conduct referred to, are stated to him.
We think a bill of particulars should be rendered him, in which is specified the nature and items of the course of conduct in the answer referred to, the acts and omissions of the plaintiff whereby he failed and neglected to co-operate with the superintendent, or by which he antagonized him, and the acts or omissions which were injurious or destructive of discipline.
It is the "course of conduct" therein referred to which it is claimed justifies the plaintiff's discharge, and until facts upon which said claim is based are made apparent, it is difficult to determine just how far additional particulars should be required. Thus we do not know that any employee became insubordinate, and, therefore, it is not clear that the name and address of any employee will be needed. We are clear that the particulars should be given as above stated; and if further particulars appear to be fairly needed after that, further application can be made for them.
The claim that the plaintiff has full knowledge of the reasons for his discharge, and that, therefore, a bill of particulars was not necessary, is not sustained by the record. A verbal statement of what the "conduct" complained of consisted, previously made by defendant's agent, would not take the place of a bill of particulars thereof, and should not be ground for refusing one.
All concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted in accordance with opinion, without costs.