Schmidtkunst v. Sutro — 19 N.Y. St. Rep. 913

Majority

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Caroline Schmidtkunst, as Administrator, et al., Resp’ts, v. Emanuel S. Sutro and Bernard Newmark, App’lts.

(New York Common Pleas, General Term,

Filed December 3, 1888.)

Headnote

Pleading—Complaint—Personal injuries—When order to make complaint MORE DEFINITE AND CERTAIN SHOULD NOT BE GRANTED—CODE Civ. Pro., § 546.

In an action for personal injuries, where the complaint alleged that defendants allowed a step-ladder in their factory to become unsafe, whereby it gave way and caused the- injury, it is sufficiently definite and certain, without specifying the particular defect in the ladder, and an application to make complaint more definite and certain was properly denied. It seems doubtful whether a bill of particulars would have been ordered if applied for under section 531.

Appeal from order denying motion to make complaint more definite and certain.

The action is brought by Caroline Schmidtkunst as administratrix of Paul Schmidtkunst, deceased, to recover five thousand dollars as damages for the death of Paul Schmidtkunst.

The complaint sets forth that Paul Schmidtkunst was in the employ of the defendants who were engaged in business in the manufacture of cigars at the city of New York, under the firm name of Sutro & Newmark.

That on or about the 8th of September, 1887, the deceased, “in accordance with, and in pursuance of instructions and directions he had received from the defendants, attempted to throw or place over a wheel run by machinery and steam, a belt, and, in so doing, got up on and used a. step-ladder for that purpose ” * * * ‘ ‘ and that the replacing of such belt was a part of the duties of said Paul Schmidtkunst in the employment of the defendants.”

“V.—That the defendants did provide a step-ladder, for that purpose, in good condition and safe to life and limb in every respect, but did in violation of their said duty, and carelessly, wrongfully and negligently allow the step-ladder in their said factory, for that purpose, to become unsafe and insecure and dangerous, out of order, faulty and dangerous to life and limb.”

The defendants, before answer, moved to have the said, allegation made more “definite and certain by specifying in what respect said ladder was unsafe and not in good condition, and the defects of the same.

Townsend, Dyett & Einstein, for app’lts; August P. Wagener, for resp’ts.

The order should be affirmed with costs. The complaint alleges that the step-ladder was un

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safe, that it gave way, and precipitated the plaintiff to the floor, whereby two of his ribs were broken. The meaning of this allegation is perfectly apparent, and the difficulty that the defendant experiences is, not in understanding what he is charged with, but in ascertaining, in advance of the trial, what weak spots in the ladder the plaintiff expects to point out to the jury. It it obvious, therefore, that the allegation is not indefinite or uncertain, and that the application for information as to the defects in the ladder, ought not to have been made under section 546 of the Code.

If the defendant had applied for a bill of particulars, though his motion would have been made under section 531 (which is the section that applies when a party desires information as to the details of a charge, that his adversary has made against him in general terms, though in language so intelligible that the accusation is unmistakable), it does not follow that he would have been successful.

Where a step-ladder that an employer provides for the use of his servant breaks down; where the servant is thrown to the ground thereby, and is seriously injured; where the step-ladder is in the possession of the employer, and was never seen by the servant before he was told to go upon it; and where the servant has never seen it since the injury, it is not likely that any court would call upon the servant to specify the cause of the collapse of the ladder um der pain of losing compensation for his injuries if he did not in his hill of particulars, mention the very defect that, in the opinion of the jury caused the break down. Again, there are cases to which the maxim Res ipsa loquitur applies, and in such cases the plaintiff is not called on to give particulars, because the explanation of the cause of the accident is then devolved upon the defendant. It might turn out, upon a motion for a bill of particulars, that this case was one of that class.

Order affirmed with costs.

Larremore, P. J., cocurs.