Opinion
February 23, 1912.
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 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.
As thus modified, the order appealed from should be affirmed, without costs.
JENKS, P.J., HIRSCHBERG, WOODWARD and RICH, JJ., concurred.
Order modified in accordance with opinion, and as so modified affirmed, without costs.