Waller v. Degnon Contracting Co.

105 N.Y.S. 203 | N.Y. App. Div. | 1907

Houghton, J.,:

The action is to recover damages for the death of an employee claimed to have been caused through the negligence of the.employer.

Plaintiffs intestate was employed by the defendant in the construction of a tunnel under the East river.

The complaint alleges that the defendant negligently permitted smoke to enter the caisson in which plaintiff’s intestate was working, from the effects of which he was asphyxiated; and further that the defendant failed to provide a proper and safe method of transmitting air to such caisson and to provide a reasonably safe place for the prosecution of work. The . answer is a denial and a plea of assumption of risk. The defendant moved for a bill of particulars requiring-piaintiff- to state in which one of the caissons of-the tunnel plaintiff’s intestate was working, and in what manner defendant was negligent in the management thereof and in what respect it neglected to provide a proper and. - safe.method of transmitting air- and to furnish a reasonably safé place for the prosecution of the .work.' This'motion was denied; .and we think improperly.

The order of denial is sought to be sustained, because whatever facts exist are inore particularly within, the knowledge of the defendant-than that of the plaintiff administrator. It is true that the administrator may not have any knowledge of the actual facts, but he does know upon what theory he seeks to recover damages from the defendant. In .applications for a bill of particulars in actions of..this. kind,.the question is not necessarily what may have been the actual facts nor -the knowledge :df the opposite party concerning them, büt rather what the aggrieved party claims them to be. (Dwyer v. Slattery, 118 App. Div. 345.)

The issues to be tried are respecting the claims of .the opposing parties. A bill of particulars is not for the purpose of exposing to one’s adversary the evidence of the party giving it, but to amplify or limit the pleadings and point out the issues to be met on the trial. Although the plaintiff may have no personal knowledge, yet' he can state the claim which lie purposes to establish upon the trial respecting the permitting of smoke to enter the caisson,-the character of the negligence which he purposes to prove which caused it, as well as the particular negligence which resulted in the failure to furnish air and to provide a reasonably-safé place-in which plaintiff's intestate could prosecute his work. By stating his claim in these respects the defendant will be apprised of- the issues to be met upon the trial. That exact issues for determination should be pointed out is not only of importance to the parties, but to the courts, to the end that they may be met speedily and in an orderly manner.- That they should -be thus pointed out. is extremely proper where the work is of magnitude, divided into different departments and under the charge, of several overseers; otherwise, a .defendant might be compelled to bring lffs entire force of employees, and superintendents to the trial in order to meet some possible act of-negligence which the plaintiff’s proof might develop.

The office of a bill of particulars being to specify the claim of a party and to particularize the issue, it is no answer to an application therefor that the party making the claim is an executor or administrator, and, therefore, has no personal knowledge. (Heslin v. Lake Champlain & Moriah R. R. Co., 109 App. Div. 814.)

The order appealed from must be reversed, with ten dollars costs and disbursements, and the motion granted, without costs.

Ingraham, McLaughlin, Clarke and Lambert, jJ., concurred. -

Order reversed, with ten dollars costs and disbursements, and motion granted, without costs.