Higgins v. Erie Railroad — 124 N.Y.S. 1082

Majority

p. 1082

HIGGINS v. ERIE R. CO.

(Supreme Court, Appellate Division, Second Department.

October 7, 1910.)

Headnote

Pleading (§ 317^[1] )—Injuries—Complaint—Particulars—Negligence of Defendant.

Where a complaint alleged generally a cause of action- for death of a-servant, due to unusual and improper machinery, and because proper instructions were not given to decedent, and because proper rules for decedent’s protection were not promulgated, defendant was entitled to a bill of particulars requiring plaintiff to state in what manner the machinery-

p. 1083

was improper, what instructions defendant failed to give, and what proper rules it did not promulgate; nor was it any answer to defendant’s demand that defendant was in a position to know the facts.

[Ed. Note.—For other cases,, see Pleading; Dec. Dig. § 317.*]

Appeal from Special Term, Orange County.

Action by Mary A. Higgins, as administratrix, etc., of Frank Higgins, deceased, against the Erie- Railroad Company. From an order denying in part’ defendant’s application for a bill of particulars, it appeals.

Reversed, and motion granted.

Argued before HIRSCHBERG, P. J., and WOODWARD, BURR, THOMAS, and RICH, JJ.

John Bright, for appellant.

William P. Gregg, for respondent.

This is an action to recover damages for personal injuries resulting in the death of plaintiff’s son. The complaint alleges, in very general language, a cause of action growing out of an accident which occurred while the deceased was engaged in oiling machinery in defendant’s rail shop at Port Jervis, and the learned court at Special Term has grantéd defendant’s motion for a bill of particulars in respect to a portion of the matters alleged in the complaint, and denied the following, of a like nature:

“(1) In what respects and in what manner does plaintiff claim that the machinery provided and maintained by defendant was unusual and improper.”

“(3) What proper and usual instructions and protection- does, plaintiff claim defendant failed to give decedent in connection with his work.

“(4) What proper and usual rules for the protection of decedent does plaintiff claim defendant failed to make, have, and promulgate.”

The complaint alleges negligence in all of these matters, but in such a general way as to make it practically impossible to determine what issues are to be met; and it is no answer to defendant’s demand for a bill of particulars that defendant is in a position to know the facts.

° The question to be determined is what the plaintiff claims are the facts. That is the issue to be tried, and the defendant has a right to be informed Of the issues by the pleadings; a bill of particulars being a part of such pleadings.

The order appealed from should be reversed, and defendant’s motion should be granted. All concur.