McCarthy v. New York Central & Hudson River Railroad

24 N.Y. St. Rep. 924

• Court: The Superior Court of New York City
• Decided: July 12, 1889
• Status: Published

Opinion

Titus, J.

This is an appeal from an order made at special term, denying a motion to strike out portions of the plaintiff’s complaint as irrelevant and redundant, and to make it more definite and certain.

The action is brought to recover damages sustained by the plaintiff for the negligence of the defendant.

The complaint alleges that while in the depot waiting to take the train, “it carelessly and negligently ran and propelled one of its cars upon and against the plaintiff, whereby he was injured,” etc.

We think under the practice followed by all of the courts, the complaint states with sufficient certainty and definiteness the negligent acts complained of. It is a plain and concise statement of the fact of the injury and the way it was caused, with an allegation of the negligence of the defendant. It is difficult to see how the facts could be more clearly and concisely stated, unless the particular circumstances showing the conduct of the defendant’s servants are required to be given, and such circumstances, merely tending to prove the facts, need not be alleged, and have no place in a pleading. Hyatt v. McMahon, 25 Barb., 457; 59 N. Y., 176; 13 Civ. Pro. Rep., 25.

On the other proposition, while it may not have been necessary to allege the matter complained of, we agree with Judge Beckwith that the words sought to be stricken out “are allegations of the circumstances tending to show the degree of care required on the part of the defendant, and the difficul ties on the part of the plaintiff as affecting the question of negligence.”

The order appealed from should be affirmed, with ten dollars costs, and disbursements.

Hatch, J., concurs; Beckwith, Ch. J., not sitting.