Kearns v. Coney Island and Brooklyn R. R. Co. — 17 N.Y. St. Rep. 692

Majority

p. 692

James Kearns, an Infant by His Guardian Ad Litem, etc., App’lt, v. The Coney Island and Brooklyn R. R. Co., Resp’t.

(Supreme Court, General Term, Second Department,

Filed June 25, 1888.)

Headnote

Bill of particulars—When properly ordered.

The complaint in an action to recover damages occasioned by the alleged negligence, the negligence alleged being that the car plaintiff was driving was •* out of repair and in an unsafe and dangerous condition ; * * * that the dangerous and unsafe condition of said car was caused by the running gear of said car being defectively constructed and out of repair, * * * in consequence of which dangerous and unsafe condition the said car could not be safely operated.” The defendant obtained an order for a bill of particulars of plaintiff’s claim, providing that if he should fail to give said bill of particulars, no testimony as to any defects in the running gear or platform, except those set forth in the complaint, should be received. Held, that the order was proper. That if he had no such proof to give, the order did not injure him.

Appeal from an order of the Kings county special term directing plaintiff to furnish a bill of particulars of his claim.

Carpenter & Roderick, for app’lt; Bergen & Dykman, for resp’t.

This action is brought to recover damages occasioned, as alleged, by defendant’s negligence. The plaintiff is a car driver upon defendant’s road. The complaint contains an exceedingly general averment of negligence, in that the car he was driving was “out of repair and in an unsafe and dangerous condition. ” The complaint subsequently particularizes the defect as to state that “ on the plaintiff’s information and belief that the dangerous and unsafe condition of said car was caused by the running gear of said car being defectively constructed and out of repair. The ratchet wheel and dog being insufficient and out of repair ; the brake-shore and brake-chain not prop

p. 693

erly adjusted and out of repair; the platform of said car being out of repair, and said car not being supplied with a brake-guard, brake-rail or dashboard, in consequence of which dangerous and unsafe condition the said car could not be safely operated.”

It is uncertain whether the specific defects named in the running gear and platform are all the defects relied on by plaintiff to make out his cause of action. The defendants. to prepare for trial should know wherein consists the negligence, which is to be the ground of recovery against the defendants.

The order,_ therefore, is just and reasonable. If the plaintiff has in view the existence of defects which he could prove under general allegations of negligence other than those he has named in the complaint, he should furnish a specification of them to the defendant.

If he has no such proof, the order does not touch him, for it is only in case of default, “except those set forth in the amended complaint,” that he is to give a bill of particulars.

The order should, therefore, be affirmed, with costs and disbursements.

Pratt and Dykman, JJ., concur.