| N.Y. App. Div. | Oct 7, 1910
This is an action to recover damages for personal injuries resulting in the death of plaintiff’s son. The cofnplaint alleges, in very general language, a cause of action growing out of an accident which occurred while the deceased was engaged in oiling machinery in defendant’s rail shop at Port Jervis, and the learned court at Special Term has granted defendant’s motion for a bill of particulars in respect to a portion of the matters alleged in the complaint, and denied the following of a like nature :
“1. In what respects and in what manner does plaintiff claim that the machinery provided and maintained by defendant was unusual and improper.”
“3. What proper and usual instructions and protection does plaintiff claim defendant failed to give decedent in connection with his work.
The complaint alleges negligence in all of these matters, but in such a general way as to make it practically impossible to determine what issues are to be met, and it is no answer to defendant’s demand for a bill of particulars that defendant is in a position to know the facts. The question to be determined is what the plaintiff claims are the facts ; that is the issue to be tried, and the defendant has a right to be informed of the issues by the pleadings, a bill of particulars being a part of such pleadings.
The order appealed 'from should be reversed, and defendant’s motion should be granted.
Hirsohberg, P. J., Burr, Thomas and Rich, JJ., concurred.
Order, in so far as appealed from, reversed, with ten dollars costs and disbursements, and motion granted.