Hoareau v. Schwartzkopf — 142 A.D. 69

Majority

p. 69

Anna M. Hoareau, as Administratrix, etc., of Louis Hoareau, Deceased, Respondent, v. Morris Schwartzkopf and Otto Ruckert, Appellants.

Second Department,

December 30, 1910.

Headnote

Pleading — negligence — bill of particulars — improper tools and

appliances.

Where the complaint of an administratrix seeking to recover for the death of her intestate, caused by the alleged negligence of the defendant, merely alleges that the defendants neglected to provide the decedent with safe and proper . tools, appliances and machinery; that they failed and omitted to see that the tool's, appliances and machinery furnished were reasonably suitable and safe for the purpose for which they were to be used, these being mere conclusions of fact, she will be compelled to give a bill of particulars stating what tools, appliances and machinery the defendant failed to provide, and in what respect they omitted to use reasonable care and prudence, etc., to see that the tools and machinery were suitable and safe, when the defendant denies knowledge on these points. This is true although the defendants know more about the particulars of their own machinery than the administratrix.

Appeal by the defendants, Morris Schwartzkopf and anotler, from an order of the Supreme Court, made at the Kings Czunty

p. 70

Special Term and entered in the office of the clerk of the county of Queens on the 17tli day of October, 1910, denying the defendants’ motion for a bill of particulars.

Carl Schurz Petrasch, for the appellants.

David C. Hirsch[John F. McIntyre with him on the brief], for the respondent.

The action is to recover damages for the death of plaintiff’s intestate alleged to have been caused through defendants’ negligence. The complaint alleges a failure to provide the decedent with safe and proper tools, appliances and machinery; that they failed and omitted to see that the tools, appliances and machinery furnished were reasonably suitable and safe for the purposes for which they were to be used. These allegations are conclusions of fact and there is no averment of the facts upon which- they rest. It is not alleged what tools or machinery the deceased was using at the time of the accident, nor what the “ apparatus ” is that it is alleged was being used and which was not proper to prevent the pattern wheel from flying apart. - The learned justice at Special Term denied the motion upon the ground that “ the defendants should know more about the particulars of their own machine than the widow of their deceased employee.” This is undoubtedly true, but they deny that they know what tools, appliances and machinery the plaintiff claims they failed to provide or in what respects it is claimed they failed and omitted to use reasonable care and prudence, or in what respect they failed and omitted-to see that the tools and machinery used were suitable and safe. They wish to know what the plaintiff claims, and I think that they áre entitled to the information. The complaint does not advise them what tools, appliances or machinery the allegations of-the complaint are directed to. The bill of particulars may be necessary to enable the defendants to prepare for trial and to prevent surprise thereat. They should not be called upon to prepare to meet each and every contingency that might be suggested as the ground of their negligence by the general allegations of the complaint. (Ti ltony Beecher, 59 N.Y. 176 , 187; Dwight v. Germania Life Ins.. Co. , id, 493, 505; Niemoller v.Duncombe, 33 App. Div, 536 ;

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Daly v. Bloomingdale, 71 id: 563 ; King v. Brookfield, 72 id. 483 ; Robinson v. Stewart, 84 id. 594 ; Burke v. Frenkel, 95 id. 89; Causullo v. Lenox Construction Co., 106 id. 575; Dwyer v. Slattery, 118 id. 345 ; Waller v. Degnon Contracting Co., 120 id. 389; Bjork v. Post & McCord, 125 id. 813.)

The order must he-reversed, with ten dollars costs and disbursements, and defendants’ motion for a bill of particulars granted, with costs.

Jenks, Burr, Thomas and Carr, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and defendants’ motion for a bill of particulars granted, with costs.

Cases cited

Tilton v. Beecher 59 N.Y. 176 N.Y. 1874-12-07 at 187 p. 70