Lusbie v. Meares — 47 N.Y. St. Rep. 249

Majority

p. 249

James H. Lusbie, Adm’r., Resp’t, v. Richard Meares, Impl’d, App’lt.

Supreme Court, General Term, First Department,

Filed June 29, 1892.)

Headnote

Bill of particulars—Negligence.

In an action to recover damages for the death of plaintiffs intestate at the time of the destruction of defendant’s hotel, alleged to have been caused by negligence in failing to furnish proper and necessary means of escape from the building in case of fire, where the defendant has testified before the coroner, upon an inquest, that he was thoroughly familiar with everything relating to the, management of the hotel and construction of the building, and the means of escape, it is not an abuse of discretion to deny a motion for a bill of particulars.

Appeal from order denying motion for bill of particulars.

William Allen, for app’lt; Solon P. Rothschild, for resp’t.

—The question presented upon this appeal is similar to that involved in the case of Donohue against the same defendant, argued at this term of the court, and a decision in which is herewith handed down. 46 St. Rep., 188 . This will render unnecessary a discussion of what we regard to be the considerations which should control determining a motion for a bill of particulars in actions of negligence. It is true that the particulars sought in this are necessarily different from those asked for in the Donohue cáse, because the complaints in each case are themselves different.

This complaint alleges that plaintiff’s intestate died “ by reason of carelessness and. negligence ” (of the defendants) “ their agents or servants, in the care, management and conduct of the hotel, and by reason of the improper construction of said building used for hotel purposes, and of the want of proper appliances, conveniences and appurtenances, essential to the safety of ?the guests thereof, and required by law, and by reason of the negligence and carelessness of the defendant Heim an Israel, or want of care on his part, and of his failure to furnish proper and necessary means of escape from said building in case of fire, as required by law.”

In this, as in the Donohue case, it was shown that the whole subject of the causes leading to the fire and the death of the inmates at that time of the hotel, was the subject of an investigation before a coroner, in which the defendant here moving

p. 250

furnished undoubted evidence that he was thoroughly familiar with everything relating to the care and management of the hotel and the construction of the building, and the appliances used and appurtenances supplied for the safety of the guests, together with the means of escape from the building in case of fire. Though the allegations of this complaint are broader and more general than those in the Donohue case, we think, in view of the knowledge possessed by the defendant and of the other facts appearing by affidavit, and for the reasons assigned by the judge in his opinion, that the discretion vested in him was not improperly exercised in denying the motion, and with that disposition we should not interfere.

The order appealed from should therefore be affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J., concurs.