Hines v. Dry Dock, East Broadway & Battery Railroad

75 A.D. 391, 78 N.Y.S. 170

Opinion

Jenks, J.;

The appeal challenged only the jurisdiction of the Municipal Court, on the ground that the action is for an assault and is, therefore, prohibited by subdivision 2 of section 1364 of the Greater New York charter. I think that the judgment must be affirmed on the authority of Hart v. Met. St. Ry. Co. (65 App. Div. 493). The learned counsel for the appellant would discriminate the case at bar from the Heart case for the reason that the plaintiff furnished the bill of particulars. He contends that the bill must be considered and taken in place of' a verified complaint, and this being so, the cause of action is revealed as one for an assault. But a bill of particulars does not set forth the cause of action and does not change the nature of it. (Abb. Tr. Brief on PI. 624; Seaman v. Low, 4 Bosw. 337.) It is but an amplification of the complaint. (Matthews v. Hubbard, 47 N. Y. 428; Higenbotam v. Green, 25 Hun, 214.) The pleadings were oral. The complaint was “ for personal inju-. ries ” against a common carrier of passengers. This complaint, as “ amplified ” by the bill of particulars, is that the plaintiff, on or about the eleventh day of May, boarded a car of the defendant for carriage and tendered his fare, and that the conductor refused to accept it, and, without cause or provocation, assaulted the plaintiff ' and threw him off the car, and that by reason of this misconduct the. plaintiff was injured. The cause of action was founded upon the contract between passenger and carrier, and the liability of the defendant arose from the breach thereof. (Stewart v. Brooklyn & Crosstown R. R. Co., 90 N. Y. 588, 590; Dwinelle v. N. Y. C. & H. R. R. R. Co., 120 id. 117.) The breach of the. contract was ■ the misconduct of the servant, which resulted in- an assault. But * the action is not for an assault within the meaning and purview, of the exception relied upon by the defendant.

The judgment should be affirmed, with costs.

. All concurred.

.Judgment of the Municipal Court affirmed, with costs. ■

Caaes DETERMINED IN THE FOURTH DEPARTMENT IN THE APPELLATE DIVISION, ©dtffooer, 1902.