Bjork v. Post & McCord

110 N.Y.S. 206 | N.Y. App. Div. | 1908

Clarke, J.:

This is an administratrix’s action to recover for the death of her decedent alleged to have been due to the negligence of the defendant. The complaint sets forth a cause of action in the most general language from which it is impossible to ascertain the nature of the employment of the decedent, the manner of his death or the negligent acts complained ,of. It alleges that on or about August 3, 1906, while plaintiff’s intestate was in defendant’s employ on defendant’s contracting operation at Thirty-ninth street and First avenue, Mew York city, Manhattan, he was caused to fall and sustain injuries resulting in his death: “ That said injuries and death were caused without any negligence on the part of this plaintiff’s intestate in anywise contributing thereto, but solely by the defendant’s negligence in that as deceased’s master, they failed to furnish him with a reasonably safe place to work, and failed to reasonably safeguard, inspect and keep safe the place, appliances and apparatus with which deceased was obliged to work and failed to furnish him with reasonably safe appliances, apparatus, works and machinery with which to do his work, and failed to furnish him with competent foremen and co-workmen to guide, direct and assist him in the performance of his work, and failed to formulate, promulgate and enforce proper rules and regulations for his safety and that of his co-employees as a result of which he was caused to fall and be injured and killed, as aforesaid.”

In substance the complaint alleges that decedent, while' in the employ of the defendant, fell and was killed by reason of defendant’s negligence. So far as informing the defendant of what it would be required to meet upon the trial, it might as well have been a piece of blank paper. A case could hardly be presented in which the propriety and necessity of a bill of particulars were more obvious. That the plaintiff is an administratrix is no answer. The case was on the day calendar when the motion was made. To recover she must prove her claim. Being upon the day calendar she' must be presumed to be ready to prove her claim, and it is the details of her claim the particulars of which are asked. As said many times, the object of a bill of particulars is to amplify the pleading, to define the issues and to limit the proof, to make certain that which is uncertain, and to apprise the defendant of what he is required to meet.

The learned court, in denying the motion, sai<3: “ The facts sought to be discovered by the proposed bill of particulars are within the knowledge of the defendant.” This is not a ground for the denial of the motion. (Dwyer v. Slattery, 118 App. Div. 345.) This court has so frequently expressed its views upon the subject of bills of particulars in like cases that there should be no doubt in the profession as to the rule bearing upon the subject. (Causullo v. Lenox Construction Co., 106 App. Div. 575; Waller v. Degnon Contracting Co., 120 id. 389 ; Kinsella v. Riesenberg, 124 id. 322.)

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Ingeaham, McLaughlin, Laughlin and Scott, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.