Reardon v. New York Consolidated Card Co.

Headnote

Bill of particulars—discretion as to.

Appeal from an order denying a motion to make the complaint more definite and certain, or to furnish a bill of particulars.

The action was brought to recover for injuries suffered by plaintiff while working ata card-cutting machine while in defendants’ employment.

The original complaint, charged that the machine was out of order at the time of the accident, as was well known to the defendant. On the trial of the cause a juror was withdrawn to enable plaintiff to move to amend the complaint. The amended complaint, charged that plaintiff was injured without knowledge on her part that said ma

chine was then defective. Neither complaint specified in what respect the machine was out of order or defective. The affidavit of the manager and superintendent of the defendant stated that the machine had been examined on the day of the accident immediately before, and again immediately after, the accident, and that after careful examination and diligent inquiry, defendant had not been able to discover wherein the machine was defective or out of order, and that defendant did not believe that the machine was out of order or defective, and did not know where to obtain the information on which the allegation in the complaint was based.

The motion was denied, for the reason, as stated in the opinion, “ I do not think that this is a case in which a bill of particulars should be ordered—defendant has the same means of knowledge or better than plaintiff.”

From the order denying motion the appeal is taken.

The court at general term said:—“The granting or denying the motion was within the discretion of the special term, and this court sees no reason to doubt that such discretion has been properly exercised in this case (Butler r. Mann, 9 Abb. N. C. 49 ; 2 Civ. Pro. R. 240). With the knowledge and information which defendants have, or can acquire as to the condition of the machine at which plaintiff was employed, there can be no difficulty in their making such answer to her complaint as would put on her the burden of proving the existence of the defect, if any there were, in the machine, by reason of which the injury to her occurred, and of testing the worth of the evidence on her behalf by the everyday experience of the working of the machine which, by reason of its being in their possession, they can command.”