Causullo v. Lenox Construction Co. — 106 A.D. 575

Majority

p. 575

Francesco Causullo, Administrator, etc., of Carmine Pitzzulo, Deceased, Respondent, v. Lenox Construction Company, Appellant.

Headnote

Bill of particulars — ordered, where a complaint in a negligence case merely sets • forth general allegations of negligence.

Where the complaint, in an action brought to recover damages resulting from the death of the plaintiff’s intestate, who was killed while in the employ of the defendant, alleges that the intestate’s death resulted from the negligence of-the defendant, in that it failed to supply him with a suitable and proper place within which to do his work and in that the place where the intestate was directed and obliged to do his work was dangerous, unprotected, unsafe and unguarded, and in that it failed to supply the intestate with competent and suitable foremen to guide, guard and direct the intestate in his work, by reason of which he was struck by an electric wire or current, the defendant is entitled to a bill of particulars specifying the particular place at which the intestate was at work, and in what respect the place was dangerous, unprotected, unsafe and unguarded and the name of the foreman alleged tobeincom-, petent, or whether the neglect complained of was a failure to employ a foreman.

Appeal by the defendant, the Lenox Construction Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 7th day of June, 1905, denying the defendant’s motion to require the plaintiff to serve a bill of particulars.

Richard B. Aldcroftt, Jr., for the appellant.

Joseph A. Shay, for the respondent.

The action is to recover damages caused by the death of the plaintiff’s intestate when in the employ of the defendant. The com

p. 576

plaint alleges that the injuries which the deceased received, and which caused his death, wére caused through the negligence of the defendant. in its failure to supply the deceased with a suitable and proper place within which to do his work, and in that the place where deceased was directed and obliged to do his work was dangerous, unprotected, unsafe and unguarded, and through its failure to supply said deceased with competent and suitable foremen to guide, guard and direct deceased in his said work, by reason of which he ivas struck by an electric wirei or current. These allegations are mere conclusions and are most indefinite. It is manifestly impossible for the defendant to properly prepare for trial without some intimation as to the particular place at which the deceased was at work and without a statement as to the respect in which that place was dangerous, unprotected, unsafe and unguarded, and also the name of the foreman alleged to be incompetent, or whether the neglect complained of was a failure to employ a'foreman. To that extent the motion should have been granted.

It follows that the order appealed from should be reversed, and the motion granted to the extent indicated, without costs.

O’Brien, P. J., Patterson, McLaughlin and Hatch, JJ., concurred.

Order reversed and motion granted to extent stated' in opinion, without costs.