Ferris v. Brooklyn Heights Railroad

102 N.Y.S. 463 | N.Y. App. Div. | 1907

Jenks, J.:

• The "plaintiff appeals from an order for .a bill of particulars. The action- is for an assault by the defendant’s servants upon the plaintiff when a passenger on one of defendant’s cars. I think a hill of particulars is proper in this case to reach justice and to afford the defendant fair opportunity for preparation to meet the issue. (Dwight v. Germania Life Ins. Co., 84 N. Y. 493.) The defendant is a eoi'poratiou which works many cars and employs a large number of men. • An allegation that on or about a certain day when the plaintiff was a passenger on a car of a specified line on a specified street, he was assaulted by the defendant, its conductor, agents, servants and employees in charge of said car, is indefinite to the extent that it leaves the defendant in the dark as to the day, the time of day, the car or the servants, and requires a minute, searching and laborious investigation by the defendant before it can throw any light upon the alleged occurrence.

The bill requires the plaintiff to namethe place and exact time of day that the accident (sic) happened and also direction car was going.” There is nothing unreasonable in these requirements. The information not only serves to locate and specify the occurrence,! but also the car and consequently those in charge of it, as it is com- j mon knowledge that the defendant keeps a record of its cars, their . trips and the particular servants in charge of each of them. (See Kerch v. Rome, Watertown & Ogdensburg R. R. Co., 14 N. Y. St. Repr. 446.) The bill also requires the number of the car, line, and badge number of the motorman and conductor. This is but to specify the car among the many worked by the defendant and to identify the servants out of the many employed by it. In Shepard v. Wood (116 App. Div. 861), decided in this court January 25,' 1907, Gaynor, J., for the court, says in discrimination: “ This is not like the case of a street car accident, where the company may require the hour of the day in order to identify the car out of many cars.” If the plaintiff knew the names of the servants he could be required to give them. (See Causullo v. Lenox Construction Co., 106 App. Div. 575, 576.) Of course it is neither essential to complaint or recovery that the plaintiff .should give the numbers of the servants or their names, but that is not the question. If he knew the numbers there is no good reason why he should-not furnish -the information, and there are many reasons which I have indicated why he should do so. I think that the plaintiff should not be required to give the “ exact statement of injuries claimed to have been sustained ” by him, orthe nature, extent and effects of same.” For there is no allegation of permanent injuries. (English v. Westchester Electric R. Co., 69 App. Div. 576 ; Steinau v. Metropolitan Street R. Co., 63 id. 126.) The requirements of a setting forth* of the length of time the plaintiff was confined to bed and house, the amounts paid for doctor’s bills and medicines, the nature of his business, average earnings ■ and the time of his detention from work, are proper. (Steinau v. Metropolitan Street R. Co., supra; O’Neill v. Interurban St. R. Co., 87 App. Div. 556; Ziadi v. Interurban St. R. Co., 97 id. 137, and cases cited.) In the case last cited we said,.per Hooker, J.: “If the plaintiff should be unable to furnish ■ any of this information, or to furnish it completely, he should be' directed to state such lack of knowledge or inability as a substitute for the information requested by the demand. (Schwartz v. Green, 38 N. Y. St. Repr. 569.)”

The order must be modified as iñdicated, and as modified affirmed without costs to either party.

Hirsohberg, P. J., Gaynor, Rich and Miller, JJ., concurred.

Order modified in accordance with opinion of Jenks, J., and as modified affirmed, without costs.