(dissenting.) As long as the defendant has made it a part of its answer to allege that the contract had not been performed, and the advertisements had not been published, it was entirely proper to require it to make these statements explicit and intelligible, by the service of the bill of particulars of the plaintiff’s failure to perform. That would greatly simplify the issue, and the investigation to be made at the trial, and generally promote the attainment of justice between the parties. The defendant by this answer created the occasion for the bill of particulars; and it should not be absolved *121■from the obligation of saving it by the sole fact that it was not bound to make this answer at all. It has made it, and the order requiring it to be amplified •by a bill of particulars was so clearly appropriate that it ought to be affirmed.