Messina v. United States Gypsum Co.

242 A.D. 898

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 1934
• Status: Published

Opinion

Order modified by inserting therein the following provisions: 1. In case a bill of particulars has been ordered in respect to any of the subjects for examination specified in this order, examination shall be limited to the subjects as stated by the plaintiff in his bill of particulars given in response to such order. 2. The examination shall be limited to a period of time antedating the beginning of the action by not more than six years. .3. The subject of examination numbered 5 shall be eliminated. As so modified the order is affirmed, without costs on this appeal. Memorandum. The record discloses (in the opinion of the justice granting the order at the Special Term) that there was a determination that a bill of particulars should be given by the plaintiff. The record fails to disclose whether or not an order for such a bill of particulars has been entered; nor does it even contain the notice of motion for the bill specifying the subjects as to which the defendant asked for particulars. For this reason we cannot confine the examination with definiteness as we might do were these matters before us. In respect to the limitation of time we find nothing in the pleadings indicating in any way that any act or conduct of the defendant occurring more than six years before the beginning of the action is material. As to subject numbered 5, we are of the opinion that it is covered so far as is material by provisions numbered 3 and 6. All concur. (The order granted plaintiff’s motion for an examination of the defendant before trial in an action for damages caused by plaintiff contracting pneumoconiosis while in defendant’s employ.)