Jackman v. Lord — 30 N.Y. St. Rep. 507

Majority

p. 507

Patrick Jackman, Resp’t, v. Franklin B. Lord, Impl’d, App’lt.

(Supreme Court, General Term, First Department,

Filed March 14, 1890.)

Headnote

1. Pleading.

Where a general allegation in a complaint is sufficient to make a good cause of action, the court cannot compel the allegation of specific facts leading to the general conclusions alleged.

2. Same—Negligence.

The complaint alleged that defendant was the owner of certain premises; that plaintiff while walking on the street was injured hy some substance thrown from said premises by an explosion of gas thereon, and that such explosion was caused hy the negligence of defendant. Held, that plaintiff would not he compelled to specify the acts constituting such negligence; that the complaint was sufficiently definite and certain; and that defendant’s remedy was hy application for a hill of particulars.

p. 508

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

6r. de F. Lord, for app’lt; Hermon H. Shook, for resp’t.

This action was brought to recover for injuries caused by an explosion, the plaintiff being at the time in the public streets of the city of New York. The complaint alleges the incorporation of the defendant, The Consolidated Gas Company, and that the defendant Lord was at the time of the explosion the owner of the premises No. 409 Grand street; that on the 16th of August, 1889, the plaintiff was lawfully on the public highway in the city of New York, known as Grand street, at the corner of Clinton, when he was injured by being hit by some object thrown from said premises by an explosion of gas thereon, which explosion was caused by the negligence of the defendant without any fault or carelessness on his part, and that in consequence the plaintiff suffered damages for which he prayed judgment.

A motion was made upon the part of the defendant Lord for an order requiring the complaint to be made more definite and certain by setting forth what act or neglect, if any, on the part of the defendant is claimed to have caused the explosion of gas alleged in the complaint. This motion was denied, and from the order thereupon entered this appeal is taken. It would appear that the object of the defendant’s motion was to compel the plaintiff to set out the evidence of the negligence which had been alleged by his complaint as against the defendants. It is sought to have him specify in the complaint what act or neglect, if any, on the part of the defendant is claimed to have caused the explosion alleged in the complaint.

It is not claimed that the complaint is deficient in allegations so as to be demurrable, but the evidence of negligence alleged in the complaint is sought to be incorporated in the complaint for the avowed purpose of determining as to which of the defendants might be considered responsible therefor, if either.

We think that the appellant has mistaken his remedy, and that the complaint is sufficiently definite and certain; and if a proper case is made out to restrict the general allegations of the complaint it should be by a bill of particulars in which the plaintiff might be compelled to state the particular acts of negligence which he would offer to prove on the trial. We do not understand that where a general allegation in the complaint is sufficient to make a good cause of action that the court can compel the allegation of specific facts leading to the general conclusions alleged in the complaint. This office is served by a bill of particulars, by which a party, in a proper case, is apprised of the particular facts which the plaintiff will seek to prove, and being so apprised cannot be surprised at the trial.

We think therefore that the order appealed from should be affirmed, with ten dollars costs and disbursements.

Daniels and Brady, JJ., concur.