Burke v. Frenkel

88 N.Y.S. 517 | N.Y. App. Div. | 1904

Jenks, J.:

This is a motion for a bill'^of particulars in an action by guest against innkeeper for personal injuries alleged to have been sustained by the fall of a window while the plaintiff was in the act of ' lowering the upper part of it. The plaintiff complains that the inn “ was negligently and carelessly maintained,” inasmuch as the defendants “ negligently and carelessly permitted the window and its appliances in said room No. 107 in said hotel, to become defective, worn and rotten, and otherwise out of repair,” and that ‘‘ by reason . of the defective, worn and rotten condition of the said window and its appliances, and solely owing to the said condition,” the window fell; and that “ the defendants or their servants knew or had reason to know that the said window and its appliances were defective, worn and rotten and otherwise out of repair, but omitted to repair the same,” and that “ such defective, worn and rotten condition was not observable or ascertainable by ordinary and reasonable inspection thereof, but was well knowh or should have been known by the defendants, but was not known to the plaintiff.”

It is not alleged in what respect the window or its appliances were defective, worn, rotten, or otherwise out of repair. The moving affidavit states that the defendant Louis Frenkel has the entire management of the hotel, and that he is completely ignorant that there is any need of repair, and that he has interviewed all of his 150 employees who would be likely to have been near the room, of whom all advise him that they knew of no defect or anything defective, worn, rotten, or otherwise- out of repair, or aught to cause a suspicion of such a condition. He further deposes that immediately after the accident he examined the window and its appliances, and could not find any defect or any- need of repair or change in window or appliances other than a new cord. The opposing affidavit states that the defendants being in possession were in a better position to know the condition of the window than the plaintiff; that the defendants’ own servants were present shortly after the accident and released the plaintiff, and that their workmen after-wards repaired the window; that plaintiff’s case must be elicited from defendants’ employees, presumably hostile witnesses, and that the plaintiff cannot give the specific defects at this time because such witnesses have not been interrogated on that point.

We think that, under the authority of our decision in Robinson v. Stewart (84 App. Div. 594), the motion should have been granted in part, namely, that the defendants should be apprised as to the respects in which the window and its appliances were defective, worn and rotten and the window was out of repair, and in what respects the inn was negligently and carelessly maintained, so that the defendants negligently and carelessly permitted the window and its appliances to become defective, worn and rotten, and otherwise out of repair, so as to be dangerous to life, limb and person, and that the time of the accident should be stated. The showing of the plaintiff that she cannot now “ give the specific defects of the window,” if thereby she intends to state that she is ignorant to the extent that she cannot in advance of the trial give such intimation as the bill requires, is no reason for withholding the bill, for a plaintiff "who does not rely upon the doctrine of res ipsa loquitur is bound to establish a prima faoie case of negligence; if he cannot show how he expects to establish his case, how can he recover in the action ? (See O'Hara v. Ehrich, 11 N. Y. Supp. 52.)

The order should be reversed, with ten dollars costs and disbursements, and the motion should be granted to the extent indicated in this opinion.

All concurred.

Order, so far as appealed from, reversed,- with- ten dollars costs and disbursements, and motion granted to the extent indicated in the opinion of Jenks, J.