Emmi v. Ryan-Parker Constuction Co. — 119 N.Y.S. 267

Majority

p. 267

(134 App. Div. 482.)

EMMI v. RYAN-PARKER CONST. CO.

(Supreme Court, Appellate Division, First Department

November 12, 1909.)

Headnote

Pleading (§ 323*)—Bill of Particulabs.

Where the order for a bill of particulars, in an- action for wrongful death resulting from defects in the machinery used by defendant called for facts as to which it would be unreasonable to believe plaintiff could have personal knowledge, it was proper to qualify the order, so as to require the same only so far as they are within plaintiff’s knowledge or information, and, if plaintiff is unable to give the details required, a statement on oath to that effect would be sufficient.

[Ed. Note.—For other cases, see Pleading, Dec. Dig. § 323.*]

•For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

p. 268

•Appeal from Special Term, New York County.

Action by Raiti Emmi, as administratrix of the goods, chattels, and credits of Salvatore Emmi, deceased, against the Ryan-Parker Con-' struction Company. From a portion of the order directing service of a bill of particulars, defendant appeals.

Affirmed.

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

William L. O’Brion, for appellant.

Adolphus D. Pape, for 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 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.

Order affirmed, with $10 costs and disbursements to respondent. All concur.