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Mueller v. Tenth & Twenty-Third St. Ferry Co.

56 N.Y.S. 310 Court N.Y. App. Div. Decision date 1899-02-24 English

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p. 310
MUELLER v. TENTH & TWENTY-THIRD ST. FERRY CO.
(Supreme Court, Appellate Division, First Department.
February 24, 1899.)

Headnote

Pleading—Bill op Particulars.
In an action for personal injuries, where the complaint set forth the injury, and also alleged plaintiff was “otherwise injured, to her damage,” etc., a bill of particulars specifying the particular injuries suffered, but not stating how plaintiff was “otherwise injured,” as required by the order, is defective in that particular, so as to authorize the court to order -a further bill of particulars in regard thereto.
Appeal from special term, New York county.
Action by Anna Mueller against the Tenth & Twenty-Third Street Ferry Company for personal injuries. From an order denying defendant’s motion for a further bill of particulars, defendant appeals.
Modified.
Argued before VAN BRUNT, P. J., and BARRETT, RUMSEY, PATTERSON, and O’BRIEN, JJ.
Lawrence E. Sexton, for appellant.
Charles C. Peters, for respondent.

The motion was not an original one for a bill of particulars, but was one to require the plaintiff to obey an order directing her to serve a bill of particulars, and the only question presented is whether the plaintiff has complied with the order as made. We think that the bill of particulars furnished was sufficient, except in one respect. The plaintiff, after specifying the particular injuries suffered, alleges that she was “otherwise injured, to her damage,” etc. The original order required her to specify how she was “otherwise .injured,” but this provision she entirely ignored. We think the court erred, therefore, in wholly denying the motion, and that it should have granted it in so far as to require the plaintiff to comply with that portion of the order- which directed particulars “of the damage otherwise suffered.”

! The order appealed from should be modified accordingly, without costs of this appeal, and the motion granted to the extent indicated, with $10 costs to the defendant, to abide the event of the.action.