Ditollo v. Erie Railroad

126 A.D. 811, 111 N.Y.S. 125, 1908 N.Y. App. Div. LEXIS 3452

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 19, 1908
• Status: Published

Opinion

Per Curiam:

The action has been reached on the call calendar and set down for trial. It is reasonable to assume, therefore, that the plaintiff is possessed of some knowledge respecting the facts alleged in the complaint, and which he will be obliged to prove. He should be able to designate, if not by name or number, at least by such description as will enable them to -be identified, the tug and float concerned in the accident upon which this action is founded, and the defendant is entitled, in order to properly prepare for trial, to such information relating to the identification of the tag and float as the plaintiff possesses. So also if the plaintiff intends to prove the allegation of his complaint that the pilot in charge of the tug was unfit and incompetent and an habitual drunkard, he must be possessed of some information that will serve to establish the identity of the pilot, and this information should be imparted to defendant. The bare, allegation of lack of knowledge on plaintiff’s part is not a sufficient answer to the demand for a bill of particulars in such a case.

The order should be reversed, with ten dollars costs and disbursements, and motion granted.

Present — Ingraham, MoLaughlin, Clarke, Houghton and Scott, JJ.

Order reversed, with ten dollars costs and disbursements, and motion granted.