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Hines v. Dry Dock, E. B. & B. R.

78 N.Y.S. 170 Court N.Y. App. Div. Decision date 1902-10-17 English

Judges Argued before GOODRICH, P. J., and BARTLETT, JENKS, WOODWARD, and HIRSCHBERG, JJ.

Delivered by JENKS, J.

Contents

Majority

p. 170
(75 App. Div. 391.)
HINES v. DRY DOCK, E. B. & B. R. CO.
(Supreme Court, Appellate Division, Second Department.
October 17, 1902.)

Headnote

1. Carriage or Passengers — Breach of Contract — Misconduct of Servant.
A bill of particulars, furnished in connection with an oral complaini “for personal injuries” against a common carrier, set out that defendant’s conductor refused to accept plaintiffs properly tendered fare, and without cause assaulted plaintiff, and threw him off the car, and that thereby plaintiff was injured. Held that, a bill of particulars being merely an amplification of the complaint, the cause of action was still founded on breach of contract by the misconduct of defendant’s servant, though such misconduct may have resulted in an assault; and that hence jurisdiction of the municipal court is not prohibited by Greater New York Charter, § 1364, subd. 2, providing that such court shall have jurisdiction of actions “to recover damages for a personal injury, * * * excepting actions to recover damages for an assault,” etc.
Appeal from municipal court, borough of Brooklyn, Fourth district.
Action by David Hines against the Dry Dock, East Broadway & Battery Railroad Company. From a judgment for plaintiff, defendant appeals.
Affirmed.
Argued before GOODRICH, P. J., and BARTLETT, JENKS, WOODWARD, and HIRSCHBERG, JJ.
G. Glenn Worden, for appellant.
K. C. McDonald (M. V. McDonald, on the brief), for respondent.

The appeal challenged only the jurisdiction of the municipal court on the ground that the action is for an assault, and is therefore prohibited by subdivision 2, § 1364, Greater New York Charter. I think that the judgment must be affirmed on the authority of Hart v. Railway Co., 65 App. Div. 493 , 72 N. Y. Supp. 797 . The learned counsel for the appellant would discriminate the case at bar from Hart’s Case, for the reason that the plaintiff furnished the bill of particulars. He contends that the bill must be con

p. 171
sidered and taken in place of a verified complaint, and, this being so, the cause of action is revealed as one for an assault. But a bill of particulars does not set forth the cause of action, and does not change the nature of it. Abb. Brief Pl. p. 624; Seaman v. Low, 4 Bosw. 337 . It is but an amplification of the complaint. Matthews v. Hubbard, 47 N. Y. 428 ; Higenbotam v. Green, 25 Hun, 214 . The pleadings were oral. The complaint was “for personal injuries” against a common carrier of passengers. This complaint, as “amplified” by the bill of particulars, is that the plaintiff, on or about the nth day of May, boarded a car of the defendant for carriage, and tendered his fare, and that the conductor refused to accept it, and without cause or provocation assaulted the plaintiff, and threw him off the car, and that by reason of this misconduct the plaintiff was injured. The cause of action was founded upon the , contract between passenger and carrier, and the liability of the defendant arose from the breach thereof. Stewart v. Railroad Co., 90 N. Y. 588 , 590, 43 Am. Rep. 185 ; Dwinelle v. Railroad Co., 120 N. Y. 117 , 24 N. E. 319 , 8 L. R. A. 224 , 17 Am. St. Rep. 611 . The breach of the contract was the misconduct of the servant, which resulted in an assault. But the action is not for an assault within the meaning and purview of the exception relied upon by the defendant.

The judgment should be affirmed, with costs. All concur.

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