Schlesinger v. Central Railroad

131 N.Y.S. 723 | N.Y. App. Term. | 1911

Cohalan, J.

The defendant appeals from an interlocutory judgment entered upon a decision overruling the defendant’s demurrer to the plaintiff’s amended complaint, on the ground that it does not state facts sufficient to constitute a cause of action. The action is brought to recover damages for personal injuries. The allegation which is the sole basis of the cause of" action reads as follows: “ That the plaintiff was caused to be struck by the said projectile by reason of the negligence and carelessness of this defendant and without any contributory negligence on the part of .the plaintiff.”

These are the only words in .the complaint upon which the defendant’s liability is predicated. The pleader does not show the omitted act that should have been done by the defendant, or the culpable act that was done by it. A plaintiff charging a defendant with negligence, from which damages result, should apprise the defendant in his pleading of the facts upon which the charge of negligence is based. Pagnillo v. Mack Paving & Construction Co., 142 App. Div. 491. In that case the complaint alleged that the plaintiff’s intestate suffered mortal injuries, “ caused solely by the negligence of the defendant and of the person then and there intrusted by it and then and there exercising superintendence for it,” etc. In holding that it was not sufficient to merely allege that the injuries were “ caused solely by the negligence of the defendant,” the court said: “ What was the omitted act that should have been done, or the culpable act that was done? Does it relate to place, appliance, tool, rule, instruction, or order ? The complaint is silent. In this State I discover no authority sustaining a pleading bare of facts. Upon examination it will be found that in the decisions invoked by plaintiff there is some fact stated, either an omission or an act, upon which negligence was predicated and charged, it may be, by a general allegation of negligence, as to such act or omission, allowing evidence of details associated with such act or omission.”

It follows, from this most recent decision and other authorities, that, having set forth in his complaint “ that the plaintiff was caused to be struck by the said projectile by reason of the negligence and carelessness of this defendant,” without setting forth any facts to sustain that conclusion, the plaintiff has failed to plead a cause of action.

Interlocutory judgment reversed, with ten dollars costs and disbursements, with leave to plaintiff to amend the complaint within six days, upon payment of costs in this court and in the court below.

Seabuby, J., concurs; Guy, J., dissents.

Interlocutory judgment reversed.