O'Hara v. Ehrich — 58 N.Y. Super. Ct. 250

Majority

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MARGARET J. O’HARA, as Administratrix, etc., Respondent v. SAMUEL W. EHRICH, et al., Appelants.

Headnote

Bill of particulars in regard to negligence in management of an elevator.

The allegation in the complaint that plaintiff’s intestate was killed by reason of the negligent and imperfect construction, management and operation of the elevator, is not particular enough. In what respect was the elevator negligently and improperly constructed? In what respect was it negligently and improperly managed and operated? or, in what respects does plaintiff expect to prove that the elevator was negligently and improperly constructed, managed and operated ? These are questions plaintiff should answer in a bill of particulars. If plaintiff cannot show this and prove the same she cannot recover.

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The mere happening of the accident does not place upon defendants the burden of proving that it was not caused by their negligence.

Before Freedman and Trtjax, JJ.

Decided June 27, 1890.

Appeal from an order denying the defendants’ motion for a bill of particulars of plaintiffs claim.

Samuel W. Weiss, attorney, and Charles B. Cole of counsel, for appellants, argued :—

I. This case comes exactly within the lines laid down by the Court of Appeals where a bill of particulars should be granted. The intricate nature of elevator machinery and of its operation and of its attachments is such that it is simple justice to a party who is called upon to defend its correct construction and operation that he be advised in advance what detail he must defend. A party might prepare himself to demonstrate the perfect nature of the elevator in a dozen different particulars, and yet, through oversight or inexpertness, fail to prepare himself upon some slight matter, which may be material and the very point upon which the attacking party relies. Again, the party attacked should be saved the needless expense of time and money in preparing to defend the entire construction and operation of an elevator when probably not more than one or two elements of it are involved in a controversy. Again, the defendants allege that the doors of the elevator were closed in the usual manner, at the usual time, and investigation develops no fact whereon negligence could be predicated. Defendants therefore are left to speculate and work in the dark upon possibilities which are numberless, while the plaintiff makes, upon a basis known to her, the general charge of negligence without any specification of detail. The rule was laid down in Tilton Beecher, 59

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N.Y. p. 76, viz. : “ A bill of particulars is appropriate in all descriptions of action where the circumstances are such that justice demands that a party should be apprised of the matters- for which he is to be put for trial with greater particularity than is required by the rules of pleading.” In Dwight v. The Germania Life Insurance Company, 84 N. Y. p. 505, the court again says : “ The purpose of a bill of particulars is to give the party every reasonable facility for coming to trial fully prepared for all that may be produced' by the other side/’ These are the two cases which have virtually settled the interpretation of the section of the Code which governs the granting of a bill of particulars. The defendants have shown to the court that, without the bill of particulars asked for by them, they cannot come to the trial “ fully prepared for all that may be produced by the other side,” and the plaintiff, by failing to deny this allegation in the moving papers, confesses this to be true. If. then, the complaint is true, the facts wherefrom negligence is deducible are wholly within the knowledge of the plaintiff, and to keep these facts (not the evidence of them, for this is not asked in the bill of particulars) is to prevent due preparation for trial.

II. A bill of particulars of what plaintiff relies upon as constituting the negligence in a case of damages for accident caused by negligence is proper. The exact question has recently been adjudicated in the Supreme Court, and it was there held: “ The defendants, to prepare for trial, should know wherein consist the negligence which is to be the ground of the recovery against them. If the plaintiff has in view the existence of defects which h^.could prove under general allegations of negligence, other than those he has named in the complaint, he should furnish a specification of them to the defend

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ant. If he has no such proof, the order does not touch him.” Kearnes v. The Coney Island & Brooklyn Railroad Co., 17 N. Y. State Rep. 692. Negligence is á conclusion which the law draws from certain facts. These facts which constitute the premises from which negligence is deducted, should be-equally within the knowledge of both parties, in order that they may be on an equal footing. This is precisely what was sought by. the motion for a bill of particulars, namely, that the defendants might know the salient facts from which the plaintiff expects the court and jury to draw the' conclusion of negligence, in order that they may be prepared to submit evidence upon those precise points to the end that the court and jury may find adversely to the contention of negligence. If evidence had been asked of the facts by defendants, the disposition of the motion below would have been eminently proper, under the rule laid down in Ball v. Evening Post Publishing Co., 31 Hun, 11 ; but that is precisely what the defendants did not ask for— their application was simply to be made acquainted with the facts which plaintiff’s evidence is expected to establish. And they are entitled to be protected against surprise. This is the raison d'etre of a bill of particulars. Drake v. Thayer, 5 Rob. 694 -701 ; Gee v. Chase Manufacturing Co., 12 Hun, 630 -632. The plaintiff relies, to sustain the order appealed from, upon the case, of Reardon v. The N. Y. Consolidated Card Company, 18 Jones & Spencer, 514 . But there is a controlling distinction between that case and the case at bar. The motion there was tb make the. complaint more definite and certain or to furnish aj-bill of- particulars. As a motion to make more definite lies only before issue joined, it is self-evident that the bill of particulars was asked to frame an answer and the court very properly refused it upon the ground that, by a general denial", the bur

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den of proof would be thrown upon the plaintiff to establish the facts of negligence, and no bill of particulars was necessary to enable them .to put in this general denial. The court says: “ There will 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.” In other words, the general term held, substantially, that they would not order a bill of particulars in a negligence case to enable the defendant to put in a general denial. The present case is in an entirely different position ; the application was made after issue was joined ; the plaintiff admits, by not denying, that without the bill of particulars defendants cannot make due preparation for trial and are at the mercy of the plaintiff. The present application, therefore, does not come under the ruling of the Reardon case, but comes under the Dwight case above cited, which determines that a defendant has a right to go to trial, “fully prepared for all that may be produced by the other side.” And the disposition of the motion below deprived them of this right.

Harvey Weed, attorney, and H. F. Lawrence of counsel, for respondent, argued :—

I. Bill of particulars will not be ordered where the defendant is as well acquainted with the facts as plaintiff, or has equal means of ascertaining the same. Power v. Hughes, 39 N. Y. 482 ; 7 J. & S., 482 ; See Note on Bill of Particulars in 2 Civil Proc. 240 ; Wiegand v. DeJonge, 18 Hun, 405 .

II. It is not the office of the bill to enable defendant to impeach or defend the claims asserted by the complaint. Drake v. Thayer, 5 Robt. 694 ; Fullerton v. Graylock, 7 lb. 551. Nor to disclosegr ounds on which plaintiff claims to recover. Seaman v. Low, 4 Bosw. 338 . The complaint definitely apprises defendants of the exact charges made against them—

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(a.) It gives the date of occurrence, (b.) It gives the time of day. (c.) It alleges its occurrence on defendants’ premises, (d.) It gives the nature of the act causing intestate’s death : i. e., “ Shutting down the doors over a certain shaft or elevator way.” The defendants in their answer deny that they were in possession or control of the elevator. Defendants then swear, in their moving affidavit, that the elevator was new, built by Otis Brothers, carefully constructed, and in perfect operation, and never had any repairs thereto. It is here submitted—First.— That if it be true, as indicated by paragraph 3 of their answer, that they were not in possession or control of the elevator, they can scarcely be held responsible for its management and operation. Second.—That if the allegation of their affidavit is true the elevator was perfectly constructed and in perfect operation. Third.—That it is apparent from their affidavit that they have complete access to the elevator way and ample information as to its construction, . management and operation, and means of obtaining same superior to plaintiff. Hence it is urged that the application for particulars in regard to the elevator should be denied.

III. Granting a bill of particulars is discretionary with the court. Dwight v. Germania Life Ins. Co., 84 N. Y. 502 . And is a power always sparingly exercised. Has almost invariably been denied in every similar case. Murphy v. Kipp, 1 Duer, 659 ; Berohurst v. Dyer, 3 Law Bull., 92; Schmidtkunst v. Sutro, 16 Civ. Pro. 143. Diligent search has failed to find any case where in a similar action the bill has been ordered after issue joined. It is never granted to help a party to evidence for his defence or to form a defence. Orvis v. Dana, 1 Abb. N. C. 268 .

IV. This court has passed upon this precise question in Reardon v. Consolidated Card Co., 50 N. Y.

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Supr. Ct. Rep. 514, a case where the allegations' of the complaint were very much more meagre than in the one at bar. There the complaint alleged a machine to be defective but did not say in what respect; and this court at general term upheld the decision of the special term justice, denying a motion to make complaint more definite and certain and also a motion for bill of particulars,

Counsel for plaintiff in his brief on this appeal stated that the plaintiff alleged the negligent act of the defendants, that caused the death of the plaintiff’s intestate, was the “ shutting down the doors over a certain shaft or elevator way.” This statement by counsel is not correct. The complaint does contain such an allegation, but it adds to it the allegation “ and the negligent and imperfect construction, management and operation of said elevator thereat by defendants.” The allegation that plaintiff’s intestate was killed by reason of the negligent and imperfect construction, management and operation of the elevator, is not particular enough. In what respect was the elevator negligently and improperly constructed ? In what respect was it negligently and improperly managed and operated ? Or, rather, in what respects does plaintiff expect to prove that the elevator was negligently and improperly constructed, managed and operated, is a question that plaintiff should answer before defendants are brought to trial. Lahey v. Kortright, 55 Super. Ct. 156.

If plaintiff cannot show in what respects she expects to prove that defendants were negligent, she cannot recover in this action. The mere happening of the accident does not place upon the defendants the burden of showing that it did not happen through their negligence.

Order reversed with costs, and plaintiff ordered to

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furnish within ten days from the service of a copy of this order, a bill of particulars showing in what respect the elevator mentioned in the complaint was negligently or imperfectly constructed, managed .or operated, with ten dollars costs to the defendants to abide the event of this action.

Freedman, J., concurred.

Cases cited

Drake v. Thayer 5 Rob. 694 N.Y. Super. Ct. p. 253