Causullo v. Lenox Construction Co. — 94 N.Y.S. 639

Majority

p. 639

CAUSULLO v. LENOX CONST. CO.

(Supreme Court, Appellate Division, First Department.

July 7, 1905.)

Headnote

Master—Death oe Servant—Complaint—Sufficiency.

Allegations of the complaint in an action for the death of a servant that the injuries deceased received were caused through the negligence of the defendant, in its failure to supply deceased with a suitable place to work; that the place was dangerous, unprotected, unsafe, and unguarded, and that, through defendant’s failure to supply deceased with a competent foreman, to guard and direct deceased in his work, he was struck by an electric wire or current—are mere conclusions, and defendant was entitled to require plaintiff to serve a bill of particulars as to the place at which decssysed was at work, and in what respect the place was dangerous, un

p. 640

protected, unsafe, and unguarded, and also the name - of the foreman, or whether the neglect was a failure to employ a foreman.

[Ed. Note.—For cases in point, see vol. 39, Cent. Dig. Pleading, § 956.]

Appeal from Special Term, New York County.

Action by Francesco Causullo, administrator of the estate of ■Carmine Pitzzulo, deceased, against the Lenox Construction Company. From an order denying a motion to require the plaintiff to serve a bill of particulars, defendant appeals.

Reversed.

Argued before O’BRIEN, P. J., and HATCH, McLAUGHLIN, PATTERSON, and INGRAHAM, JJ.

Richard B. Aldcroftt, for appellant.

Joseph A. Shay, for respondent.

The action is to recover damages caused by the death of the plaintiff’s intestate when in the employ of the defendant.. The complaint alleges that the injuries that the deceased received, and which caused his death, were caused through the negligence of the defendant, in its failure to supply the deceased with a suitable and proper place within which to do his work, and that the place where deceased was directed and obliged to do his work was dangerous, unprotected, unsafe, and unguarded, and, through its failure to supply said deceased with competent and suitable foremen to guide, guard, and direct deceased in his said work, by reason of which he was struck by an electric wire or current. These allegations are mere conclusions, and are most indefinite. It is manifestly impossible for the defendant to properly prepare for trial without some intimation as to the particular place at which the deceased was at work, and in what respect that place was dangerous, unprotected, unsafe, and unguarded, and also the name of the foreman alleged to be incompetent, or whether the neglect complained of was a failure to employ a foreman. To that extent the motion should have been granted.

It follows that the order appealed from should be reversed, and the motion granted, to the extent indicated, without costs. All concur.