Murrain v. Wilson Line, Inc.

266 A.D. 179, 41 N.Y.S.2d 689, 1943 N.Y. App. Div. LEXIS 3515

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 21, 1943
• Status: Published

Opinions

Per Curiam.

The order for examination is too indefinite in that it requires an officer “ having knowledge ” to attend and requires “ such relevant ” books and records to be produced. The order should specify the officer to be examined and the documents required.

The requirement for a bill of particulars of the defense of contributory negligence is also improper in this case. There are no allegations that plaintiffs are without knowledge of the facts surrounding the accident, or that the information with reference to the accident is wholly in the possession of the defendant. It is only under such circumstances that a bill of particulars of a defense of contributory negligence will be required. (Egan v. Tishman & Sons, Inc., 222 App. Div. 141.) Even then the defendant will only be required to particularize concerning such claims of contributory negligence as it intends to assert in addition to those it may be able to develop on cross-examination of plaintiffs ’ witnesses. (Dunson v. Kirtland, 235 App. Div. 854.)

The order should be reversed, with twenty dollars costs and disbursements, and the motions denied, without prejudice to renewal on proper papers.