126 N.Y.S. 448 | N.Y. App. Div. | 1910
The action is to recover damages for the death of plaintiff’s intestate alleged to have been caused through defendants’ negligence. The complaint alleges a failure to provide the decedent with safe and proper tools, appliances and machinery; that they failed and omitted to see that the tools, appliances and machinery furnished were reasonably suitable and safe for the purposes for which they were to be used. These allegations are conclusions of fact and there is no averment of the facts upon which- they rest. It is not alleged what tools or machinery the deceased was using at the time of the accident, nor what the “ apparatus ” is that it is alleged was being used and which was not proper to prevent the pattern wheel from flying apart. - The learned justice at Special Term denied the motion upon the ground that “ the defendants should know more about the particulars of their own machine than the widow of their deceased employee.” This is undoubtedly true, but they deny that they know what tools, appliances and machinery the plaintiff claims they failed to provide or in what respects it is claimed they failed and omitted to use reasonable care and prudence, or in what respect they failed and omitted-to see that the tools and machinery used were suitable and safe. They wish to know what the plaintiff claims, and I think that they áre entitled to the information. The complaint does not advise them what tools, appliances or machinery the allegations of-the complaint are directed to. The bill of particulars may be necessary to enable the defendants to prepare for trial and to prevent surprise thereat. They should not be called upon to prepare to meet each and every contingency that might be suggested as the ground of their negligence by the general allegations of the complaint. (Tiltony Beecher, 59 N.Y. 176, 187; Dwight v. Germania Life Ins.. Co., id, 493, 505; Niemoller v.Duncombe, 33 App. Div, 536;
The order must he-reversed, with ten dollars costs and disbursements, and defendants’ motion for a bill of particulars granted, with costs.
Jenks, Burr, Thomas and Carr, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and defendants’ motion for a bill of particulars granted, with costs.
