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Biehayn v. New York City Railway Co.

108 N.Y.S. 66 Court N.Y. App. Div. Decision date 1908-01-10 English

Delivered by *67 MILLER, J.

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p. 66
BIEHAYN v. NEW YORK CITY RY. CO.
(Supreme Court, Appellate Division, Second Department.
January 10, 1908.)

Headnote

Pleading—Action fob Personal Injuries—Bill of Particulars.
Where, in an action for personal injuries, the complaint contained a general allegation that plaintiff was permanently injured, followed by a statement that “his left hip was bruised and injured, his nervous system was shocked and injured, and he was otherwise bruised and injured about the head, body, and limbs,” defendant was entitled to a bill of particulars specifying the injuries, claimed to be permanent; the physical examination authorized by Code Civ. Proc. § 872, not serving the purpose of a bill of particulars.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 89, Pleading, §§ 954-956.]
Appeal from Special Term, Kings County.
Action by Louis E. Biehayn, an infant, by Albert Biehayn, his guardian ad litem, against the New York City Railway Company. From an order denying defendant’s motion for a bill of particulars, it appeals. Reversed.
Argued before HIRSCHBERG, P. J„ and WOODWARD, RICH, MILLER, and GAYNOR, JJ.
Bayard H. Ames and Walter Henry Wood, for appellant.
Ralph G. Barclay, for respondent.

This is an action for personal injuries. The defendant appeals from an order denying a motion for a bill of particulars respecting the plaintiff’s injuries. The- complaint contains a general allegation that the plaintiff was permanently injured, followed by a statement that:

“His left liip was bruised and injured, his nervous system was shocked and injured, and he was otherwise bruised and injured about the head, body, and limbs.”

It is well settled that in such case the defendant is entitled to a bill of particulars specifying the injuries claimed to be permanent. The physical examination authorized by the Code of Civil Procedure (section 872) does not serve the purpose of a bill of particulars. Baker v. New York City Railway Co., 116 App. Div. 858 , 102 N. Y. Supp. 276 .

The order should be reversed, and the motion granted, requiring the plaintiff to serve a bill of particulars specifying the injuries claimed to be permanent.

Order reversed, with §10 costs and disbursements, and motion granted, requiring the plaintiff to serve a bill of particulars specifying the injuries claimed to be permanent, with costs. All concur, except HIRSCHBERG, P. J., not voting.

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