Majority
p. 1014CUNNINGHAM v. UNITED STATES CASUALTY CO. (Supreme Court, Appellate Division, First Department. April 24, 1908.) Argued before INGRAHAM, LAUGHLIN, CLARKE, HOUGHTON, and SCOTT, JJ.
Headnote
Pleading—Bill of Particulars.In an action upon an insurance policy, where plaintiff contended that defendant had waived the requirements of its policy as to the furnishing of proofs of death and as to the time within which the action might be brought, defendant was entitled to a bill of particulars setting out the particular acts of omission or commission upon which plaintiff rested her claim, as well as a copy of the notification of death, if it was in writing.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 39, Pleading, §§ 954-962.]
Appeal from Special Term.
Action by Laura C. Cunningham against the United States Casualty Company. From an order denying a motion for a bill of particulars, defendant appeals. Reversed, and motion granted.
Carl S. Petrasch, for appellant.
Gilbert D. Steiner, for respondent.
The plaintiff should have been required to give the particulars which the defendant demanded, and which were denied at Special Term. If the notification of death was in writing, it cannot prejudice the plaintiff in any way to give a copy of the writing; nor can it prejudice her to state the particular acts of omission or commission upon which she rests her claim that defendant has waived the requirements of its policy as to the furnishing of proofs of death, and as to the time within which action must be brought. This is not, in any proper sense, requiring the plaintiff to disclose her evidence, but merely .calling upon her to state the particular facts upon which she bases her general assertion of waiver.
p. 1015
The order, in so far as it refuses to order these particulars, must be reversed, with $10 costs and disbursements, and the defendant’s motion granted in full, with $10 costs.