Wojtczak v. American Manufacturing Co. — 137 N.Y.S. 287

Majority

p. 287

(152 App. Div. 433.)

WOJTCZAK v. AMERICAN MFG. CO.

(Supreme Court, Appellate Division, Second Department.

September 10, 1912.)

Headnote

Pleading (§ 317*)—Bill of Pakticulabs—Negligence.

Where, in an action for injuries to a servant, negligence was alleged in the use, management, control, and operation of a machine at which plaintiff was employed, which rendered the same dangerous, and also in that defendant failed to instruct plaintiff in the operation of the machine, in order that the same might be used and controlled with safety, defendant was entitled to a bill of particulars stating in what respects the use, management, control, and operation of the machine was dangerous, and as to what instruction was-required.

[Ed. Note.—For other cases, see Pleading, Cent Dig. §§ 95A-962; Dec.. Dig. § 317.*]

Jenks, P. J., and Burr, J., dissenting in part.

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

p. 288

Appeal from Sjpecial Term, Kings County.

Action by Bronislawa Wojtczak, an infant, by Ladi'slaus Torek, her guardian ad litem, against the American Manufacturing Company. From so much of a Special Term order as denied a part of defendant’s motion for a bill of particulars, it appeals.

Modified and affirmed.

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

Thomas F. Magner, of Brooklyn, for appellant.

I. E. Broadwin, of New York City, for respondent.

This action is brought by a servant against the master to recover for personal injuries alleged to have been sustained through its negligence. The learned court at Special Term has granted defendant’s motion for a bill of particulars regarding some matters alleged in 'the complaint, but denied the following, among others:

(1) “In what respects was the use, management, control, and operation of the machine at which she was employed, dangerous?”

(2) “What instruction was required in the use, management, control, and operation of said machine, in order that the same might be used and controlled with safety?”

Negligence is alleged in both of these particulars, but, as was said in Higgins v. Erie Railroad Co., 140 App. Div. 222 , 124 N. Y. Supp. 1082 —

“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.”

We are of the opinion that this rule requires a compliance with defendant’s demands as quoted above, and the order is modified, by including within its requirements the two particulars, and, as so modified, affirmed, without costs to either party.

THOMAS and WOODWARD, JJ., concur. JENKS, P. J., and BURR, J., dissent as to the second requirement. ■ '