Clum v. Federal Sugar Refining Co.

136 A.D. 355, 120 N.Y.S. 975, 1910 N.Y. App. Div. LEXIS 25

Opinion

Jenks, J.:

We think that, the complaint is so general as to 'justify a bill óf' particulars, but that the requirements of.the order exceed the purpose thereof, which should be amplification of the.pleading to inform the defendant, but .not to set forth, the evidence. The learned counsel for the plaintiff confines his attack to' two requirements. The first is; “ In just what way the plaintiff’s hand became caught in the cog. wheels or pinion, as alleged in paragraph ' Fourth ’' of the complaint, showing also just What he was doing with said hand at the time it became caught.” We think the plaintiff should be required to show what he was doing in the master’s service as an oiler at the time his hand was caught in the cog wheels or pinion,' and, if he-can, to state how it was that his hand was caught there. The second requirement is: “ A statement'-of each and every duty obligatory on the defendant which plaintiff claims defendant disregarded, as alleged in paragraph ‘ Fourth ’ of the complaint, particularly setting forth those facts which plaintiff claims constitute a disregard of each and every said duty.” We think that the plaintiff should state .that duty, of those duties of the defendant owing to the servant but disregarded by the defendant.

The order should be modified as indicated, and as modified affirmed, without costs.

Hirschberg, Pí J-, Burr, Thomas and Carr, JJ., concurred.

Order modified in accordance with opinion, and as so modified affirmed, without costs. Settle order before Mr. Justice Jenks.