Ditollo v. Erie Railroad — 111 N.Y.S. 125

Majority

p. 125

DITOLLO v. ERIE R. CO.

(Supreme Court, Appellate Division, First Department.

June 19, 1908.)

Headnote

Pleading—Bill of Particulars—Answer to Demand.

The case having reached the call calendar and been set down for trial, it is to be assumed that plaintiff, the action being based on an accident caused by a tug and float and negligence of the pilot in charge of the tug, has some knowledge respecting the identity of the crafts and the pilot, so that the bare allegation of lack of knowledge on plaintiff’s part is an insufficient answer to a demand for a bill of particulars.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 39, Pleading, §| 672, 973.]

p. 126

Appeal from Trial Term.

Action by Gaetano Ditollo, administrator, against the Erie Railroad Company. From an order denying a motion for a bill of particulars, defendant appeals.

Reversed, and motion granted.

Argued before INGRAHAM, McLAUGHLIN, CLARKE, HOUGHTON, and SCOTT, JJ.

William C. Cannon, for appellant.

The action has been reached on the call calendar and set down for trial. It is reasonable to assume, therefore, that the plaintiff is possessed of some knowledge respecting the facts alleged in the complaint, and which he will be obliged to prove. He should be able to designate, if not by name or number, at least by such description as will enable them to be identified, the tug and float concerned in the accident upon which this action is founded, and the defendant is entitled, in order to properly prepare for trial, to such information relating to the identification of the tug and float as the plaintiff possesses. So, also, if the plaintiff intends to prove the allegation of his complaint that .the pilot in charge of the tug was unfit and incompetent and a habitual drunkard, he must be possessed of some information that will serve to establish the identity of the pilot, and this information should be imparted to defendant. The bare allegation of lack of knowledge on plaintiff’s part is not a sufficient answer to the demand for a bill of particulars in such a case.

Order reversed, with $10 costs and disbursements, and motion granted.