Phillips v. Ehrmann — 53 N.Y. St. Rep. 331

Majority

p. 331

Albertina Phillips, Resp’t, v. Isaac Ehrmann, App’lt.

(City Court of Brooklyn, General Term,

Filed June 26, 1893.)

Headnote

Bill of particulars—Denial of, when proper.

A motion for a bill of particulars of the articles alleged to have been damaged, and of the particular damage to each, is properly denied where it appears that such articles have been exhibited to the defendant and to appraisers appointed by the parties, and that an appraisal was made in defendant’s presence.

Appeal from order made by Chief Judge Clement, denying a motion made on the part of the defendant for a bill of particulars -of the plaintiff’s alleged claim for damages.

The plaintiff’s complaint charges that she hired rooms from the defendant, and that notwithstanding his promise to make certain repairs to the roof, it was allowed to remain in a leaky condition; in consequence of its condition rain leaked in and entered the plaintiff’s apartments, by reason of which the plaintiff’s “furniture. carpets, oilcloth, mattings, rugs, table cover, lamps and shades, crockery, stoves, toilet sets, silverware, clothes, linen and sundry articles of household furniture were seriously damaged or ruined.” Plaintiff was compelled to vacate her premises * * * and seek other apartments for the remainder of the month of February, 1893, owing to the condition of the premises caused by the leakage of the roof. To her damage, $500.

The answer denies the damage, and in his affidavit the defendant avers that he has no knowledge of the alleged damage, and

p. 332

asks for an order that the plaintiff deliver a bill of particulars showing the amount of damage to each article, etc.

The plaintiff submitted an affidavit showing that a Mr. Battermann was defendant’s appraiser and that the damaged articles were shown to him and to the defendant,' and that by reason of the premises the defendant received full knowledge of the extent of the injuries sustained by the plaintiff to her property.

Henry C. Botty, for resp’t; Fernando Solinger, for app’lt.

This is an 'appeal from an order denying a motion for a bill of particulars. The action is brought to recover damages for injuries done through defendant’s culpable fault to plaintiff’s “ furniture, carpets, oilcloths, matting, rugs, table cover, lamps and shades, crockery, stoves, toilet sets, silverware, clothing, linen and sundry articles of household goods,’’ on February 22, 1893, at 20 Graham avenue. Defendant, in asking, for a bill of particulars of the articles injured and the damage to each, alleged generally that he was ignorant of the same. On the hearing plaintiff swore that on February 22, 1893, she called defendant’s attention to the extent of the damage done, and exhibited to him all the damaged articles, and that, on the next day, she again exhibited the articles to,defendant and-Mr. Battermann, his adpraiser, and to Mr. Cohen, her appraiser, and .that these two appraisers duly examined the damaged articles and appraised the same in the presence of defendant and herself. Defendant did not deny this explicit statement of plaintiff under oath, showing conclusively that he personally has examined the articles and had them examined arid appraised by a person selected by himself, and it is hard to imagine what more information a bill of particulars would afford him. There is no valid reason for interfering with the exercise of what seems to us to have been a sound discretion in the denial of the application.

Order must be affirmed, with costs.

Osborke, J., concurs.