Biehayn v. New York City Railway Co.

123 A.D. 652, 108 N.Y.S. 66, 1908 N.Y. App. Div. LEXIS 142

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 10, 1908
• Status: Published

Opinion

Miller, J.:

This is an action for personal injuries. The defendant appeals from an order denying a motion for a bill of particulars respecting the plaintiff’s injuries. The complaint -contains a general allegation that the plaintiff was permanently injured, followed by a statement that “his left hip was bruised and injured, his nervous system was shocked and injured, and he was otherwise bruised and injured about the head, body and limbs.” It is well settled that in such case-the defendant is entitled to a bill of particulars specifying the injuries claimed to be permanent. - The. physical examination authorized by the Code of Civil Procedure (§ 873) does not serve the purpose of a bill of particulars. (Baker v. New York City Railway Co., 116 App. Div. 858; 102 N. Y. Supp. 276.)

The order should be reversed and the motion granted, requiring the plaintiff to serve a bill of particulars specifying the injuries claimed to be permanent.

Woodward, Gatnor and Bien, JJ., concurred; Hieschberg, P. J., not voting.

Order reversed, with ten dollars costs and disbursements, and motion granted requiring the plaintiff to serve a bill of particulars specifying the. injuries claimed to be permanent, with costs.