Emmi v. Ryan-Parker Construction Co. — 134 A.D. 482

Majority

p. 482

Raiti Emmi, as Administratrix, etc., of Salvatore Emmi, Deceased, Respondent, v. Ryan-Parker Construction Company, Appellant.

First Department,

November 12, 1909.

Headnote

Pleading — bill of particulars — suit by representative for injuries causing death — plaintiffs knowledge.

A representative suing to recover damages for negligence causing death should not be required to make her bill of particulars of defects in the ways, works, machinery or plant used by the defendant of her own knowledge, where it does not appear and is not probable that she was on the. spot when the acci

p. 483

dent happened so that whatever knowledge she has must necessarily have been obtained from others. It is proper for the order to provide that the bill of particulars shall be furnished by the plaintiff only in so far as the same is within her knowledge or information.

Appeal by the defendant, Ryan-Parker Construction Company, from so much of 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, which directs the service of a bill of particulars.

William L. O'Brien, for the appellant.

Adolphus D. Pape, for the respondent.

The action is for the death of plaintiff’s intestate resulting from the upsetting of a box of concrete. The complaint alleges that the accident was caused by defendant’s negligence and by reason of defects in the condition of the ways, works, machinery or plant used by defendant.

The order appealed from requires plaintiff to furnish particulars as follows:

First. Wherein the place where plaintiff’s intestate was working was insecure, defective and unsafe, as alleged in paragraph “ fifth ” of the complaint.

Second. Wherein the tools, implements and machinery supplied plaintiff’s intestate were unsafe, improper and defective, as alleged in paragraph “ fifth ” of the complaint.

Third. Exactly where was plaintiff’s intestate at the time he was adjusting the box referred to in paragraph “ fifth ” of the complaint.

Fourth. A specification of what caused the box or receptacle to turn over, as alleged in paragraph “ fifth ” of the complaint.

Fifth. A specification of each and every defect plaintiff claims existed in the ways, works and machinery connected with or used by said defendant at said place, as alleged in paragraph “ sixth ” of the complaint.

The defendant appeals against the qualifying clauses reading as follows: “ Further ordered, that the Bill of Particulars as ordered above shall only be furnished by the plaintiff in so far as the same is within the knowledge or information of the plaintiff, and it is

p. 484

“ Further ordered, that if the plaintiff is unable to give the details required by this order, she should state on oath that she is unable of her own personal knowledge to furnish the same.”

The first four items call upon plaintiff to state, as of her own knowledge, certain matters concerning which it would be unreasonable to believe that she can have personal knowledge. It does not appear, and is not probable, that she was on the spot when the accident happened, and whatever knowledge she has of the conditions as they then existed must of necessity be obtained from others.

The fifth item of particulars required calls upon plaintiff to specify the defects, etc., which she claims existed. As to this, of course^ the qualifying provisions of the order cannot apply, for it would be a mere evasion for plaintiff to swear that she cannot give a detailed statement of what she claims. If plaintiff is evasive in her replies it will be open- to defendant to move further.

The order should be affirmed, with ten dollars costs and disbursements to respondent.

Ingraham, Laughlin, Clarke and Houghton, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.