Hyperlawhypertext legal database Robinson v. Stewart 82 N.Y.S. 928

← Cases

Robinson v. Stewart

82 N.Y.S. 928 Court N.Y. App. Div. Decision date 1903-06-12 English

Delivered by WILLARD BARTLETT, J.

Contents

Majority

p. 928
ROBINSON v. STEWART.
(Supreme Court, Appellate Division, Second Department.
June 12, 1903.)

Headnote

1. Landlord and Tenant—Defective Premises—Tenant’s Action for Injuries—Bill of Particulars.
Where a tenant, suing for injuries occasioned by a defective stairway, merely alleges that the landlord permitted the stairway to be in a dangerous condition, and failed to have proper lights in the hallway, and on motion for a bill of particulars the landlord’s affidavit shows that he does not know in what respect the stairway was dangerous, and by diligent inquiry could not ascertain, a bill of particulars should be ordered.
Appeal from Special Term, Kings County.
Action by Mary Robinson against David J. Stewart. From an order denying the defendant’s motion for a bill of particulars, he appeals.
Reversed.
Argued before GOODRICH, P. J., and BARTLETT, JENKS, HIRSCHBERG, and HOOKER, JJ.
Bruce R. Duncan, for appellant.

This is an action by a tenant against a landlord to recover damages for personal injuries alleged to have been sustained by the tenant in falling down a stairway provided by the landlord for the common use of the tenants in the premises. The complaint alleges that the plaintiff’s fall was occasioned, “and said injuries caused, solely and wholly through the negligence and carelessness of the defendant, his agents, servants, and employés, in permitting said stairway to be in a dangerous and insecure condition, and in failing to have the proper light in the hallway, and to be and remain wholly unlighted, in violation of the laws of state of New York and ordinances of city of New York.” There is no specification whatever showing in what respect the stairway was dangerous or insecure. The affidavit on which the defendant moved for a bill of particulars declares that he does not know in what respect the stairway was in a dangerous and insecure condition, or what portion of the stairway is referred to in the allegation of the complaint. He further avers that he has caused diligent inquiries to be made, and has been unable to learn in what respect the stairway was dangerous or insecure, but that, on the contrary, so far as he has been able to ascertain, it was in a perfectly safe- and secure condition at the time of the alleged accident. The plaintiff presented no affidavit whatever in opposition to the motion. We think that the application should have been granted. Wilson v. American Steel & Copper Plate Co., 56 App. Div. 527 , 67 N. Y. Supp. 508 ; Daly v. Bloomingdale, 71 App. Div. 563 , 76 N. Y. Supp. 131 ; King v. Brookfield, 72 App. Div. 483 , 76 N. Y. Supp. 604 . The possibilities are so numerous as to what the plaintiff may claim on the trial in regard to the actual condition of the stairway, which rendered it insecure and dangerous, that the defendant ought to have some intimation in advance in regard to the case which he will have to meet.

Order, in so far as appealed from, reversed, with $10 costs and disbursements, and motion granted. All concur.

Cases cited