Convery v. Marrin — 128 A.D. 265

Majority

p. 265

Bridget Convery, as Administratrix, etc., of James Convery, Deceased, Respondent, v. Edward Marrin and Patrick Marrin, Appellants.

First Department,

October 23, 1908.

Headnote

Pleading — bill of particulars—negligence—laches.

A motion made on the eve of trial for a bill of particulars as to alleged negligence should not be denied for laches, if it do not appear that, the plaintiff will lose by the delay, or that the trial must be postponed if the motion be granted. •

Appeal by the defendants, Edward Marrin and another, from an order of the Supreme Court, made at the Mew York Special Term and entered in the office of the clerk of the county of New York on the 23d day of June, 1908.

William L. O'Brion, for the appellants.

Appeal from an order denying a motion for a bill of particulars. The action is for damages for the death of plain tiffs intestate, and the complaint is in the usual general form charging the defendants with every possible form of negligence. The defendants’ motion for a bill of ¡particulars has been denied upon'the ground of laches, based apparently upon the'fact that the motion was not made until the eve of the trial. It does not appear that plaintiff has lost anything by the delay, or that she would be compelled to submit to a postponement of her trial if required to furnish the required particulars. In fact it may well be that she is in a better position to do this now than she would have been earlier in the litigation before she had had an opportunity to ascertain just what evidence she could command. If she is prepared to go to trial, she must know, what she will undertake to prove, and should .find no difficulty in furnishing the particulars demanded. The rule under which motions are often denied on account of laches .on the part of the moving party has no application to such a case.

p. 266

The order should be reversed, with ten. dollars costs and disbursements, and motion granted.

Present -— Patterson, P. J., Ingraham, Laughlin, Clarke and Scott, JJ.

Order reversed, with ten dollars costs and disbursements, and motion granted.