Gray v. Shepard 13 N.Y.S. 27

Gray v. Shepard.

(Supreme Court, General Term, First Department.

January 16, 1891.)

Bill of Particulars of Defense—General Denial.

Plaintiff will not be entitled to a bill of particulars, when the answer, though containing matter affirmative in form, amounts simply to a general denial. '

Appeal from special term, New York county.

Action by Frank S. Gray against Elliot F. Shepard. The complaint alleges that on the 18th of April, 1888, the plaintiff and defendant made an agreement in writing whereby the plaintiff undertook to render bis services to the defendant, in or about a certain publication known as the “New York Mail and Express, ” from the 13th day of May, 1888, for the term of five years, at the yearly salary of $6,000, and that defendant employed him upon said terms. The plaintiff further avers that he duly entered upon his employment under said agreement, and duly discharged the duties thereof until the 4th day of January, 1890, and that he has ever since been and still is ready and willing to perform all conditions of said agreement upon his part to be performed. He further avers that the defendant then refused and still refuses to allow him so to do or to pay him therefor, to his damage in the sum of $35,000, for which sum he demands judgment, with costs. The answer of the defendant denies that he made any contract with the plaintiff, except one which is annexed to the answer, and in substance alleges that the plaintiff did not keep and perform his agreement according to the terms thereof, and the true intent and meaning thereof, to the great injury of said defendant; that while he remained in such employment he proved to be incompetent and unable to do the work assigned to him under said contract, and did not satisfactorily do and perform the same, and proved to be incompatible in his habits and manners to and with said defendant and other persons in the employ of said defendant in connection with the publication of said newspaper and its various editions; and it, in like manner, negatives the performance of the various conditions of the contract, by averring, in substance, that the plaintiff did not keep and perform said contract, but violated the same. A motion by plaintiff for an order that defendant furnish him with a bill of particulars of said matters of defense was denied, and plaintiff appeals.

Argued before Van Brunt, P. J., and Brady and Daniels, JJ.

Dittenhoeffer & Gerber, (A. J. Dittenhoeffer, of counsel,) for appellant. Robert G. Alexander, {Noah Davis, of counsel,) for respondent.