Hyperlawhypertext legal database M. J. Taylor & Co. v. Asiel 93 N.Y.S. 377

← Cases

M. J. Taylor & Co. v. Asiel

93 N.Y.S. 377 Court N.Y. App. Term Decision date 1905-04-24 English

Delivered by GREENBAUM, J.

Contents

Majority

p. 377
M. J. TAYLOR & CO. v. ASIEL.
(Supreme Court, Appellate Term.
April 24, 1905.)

Headnote

Pleading—Bill of Pabticulabs.
In an action by a lessee to recover damages for injuries to property, caused by the negligent manner in which the lessor maintained the roof of the demised premises, plaintiff should be required to furnish a bill of particulars as to the nature of acts relied on as constituting a waiver of a clause in the lease requiring written notice of leakage, of the times when such acts were done and by whom, and of the reasonable value of the property claimed to have been destroyed.
Appeal from City Court of New York, Special Term.
Action by M. J. Taylor & Co. against Leopold N. Asiel. From an order denying a motion for bill of particulars, defendant appeals. Modified.
The action is brought to recover damages for injuries to personal property sustained by the plaintiff in consequence of the negligent manner in which the defendant maintained and repaired the roof of certain premises, of which the defendant is the lessor and the plaintiff the lessee.
Argued before SCOTT, P. J., and LE'VENTRITT and GREEN-BAUM, JJ.
Kurzman & Frankenheimer (Nathan Ottinger, of counsel), for appellant.
William Bondy, for respondent.

The particulars desired as to the alleged waiver of the clause in the lease requiring written notice of leakage would be tantamount to an amplification of the allegations of the complaint bearing upon a change in the terms of the original letting. No facts are pleaded, nor are any disclosed in the answering affidavit upon this motion, from which it may be said that the

p. 378
defendant is fairly apprised of the precise nature of the plaintiff’s .claim in respect of waiver. Plaintiff should be required to furnish particulars as to the nature of the acts which constitute the alleged .waiver, the times when such acts were done, and by whom done. It also seems to me that the plaintiff should be required to furnish particulars of the reasonable value'of the property which he claims was destroyed.

The order will be modified to the extent indicated, and, as thus modified, affirmed, without costs. All concur.