102 N.Y.S. 306 | N.Y. App. Div. | 1907
. The complaint is that the defend^Hran into the plaintiff with his automobile on September 3rd, 11TO4, on Bedford road near Cottage place, in the town of Mount Pleasant, Westchester county, while the plaintiff was driving his horse and cart there. This complaint is good whether the defendant was himself driving his" automobile, or in it at all. The cause of action will be made out if the defendant’s servant did the act. It will be also made out even though the date be the 2nd or 4th instead of the 3rd.
But the answer, instead of being a general denial, is a denial of the complaint in hcee verba, following the date, etc., just as alleged, and is also restricted to a denial that the defendant was personally present and did the act. This is clearly, a negative pregnant with
For this reason alone the motion for a bill of particulars was properly denied. ’ ‘ .
But the motion was in itself a gross abuse and imposition on the court below, calling as it did for the date, the precise hour, a more precise description of the place, the direction from Cottage place the plaintiff was coming, the distance between the horse and the automobile when the plaintiff’s horse turned, as alleged in the complaint, the relative position of the truck on the highway against which the plaintiff was thrown, as alleged in the complaint, on which side it was being driven and the direction, on which side the plaintiff was driving,, the number of the automobile, a,description of it, including the make, size,, color, the number of ■ Seats, whether they faced, or were back to back, or faced forward, whether the motive power was gasoline-or steam, the character of the automobile, whether it was light or heavy, a runabout, touring car, or other class of vehicle, whether it had a tonneau, whether it was enclosed, had a. canopy or covering, or an open car,, how many persons occupied it, a description of the driver and other occupants, giving their apparent age, sex and' dress, whether they wore goggles, spectacles or masks; and any other particulars known to the plaintiff which would'tend to identify the automobile. FTo judge at Special Term can be expected to look with favor or any leniency on such a demand as this. It triiie|- ^ith the practice, of the courts and the administration of jnstiee,*|jj|j|í •
In this jumble of' requé'sf^he judge below did not pick out that, for the, hour of the day and'grant it (which is made the chief grievance here), and he was entirely justified in not doing so. If that is what the defendant wanted he should have asked for it specifically, and-shown that he needed it. 1
. .If the defendant’s automobile was not there at all, that can easily be made to appear on the trial. The defendant can prove it was not there at all on the day of the accident as easily 'as that it was not there at some particular hour that day. 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. We must allow the judgment and discretion of judges of first instances to
The order should be affirmed.
Hirschberg, P. J., Woodward, Rich and Miller, J J., concurred.
Order affirmed, with ten dollars costs and disbursements.
