O'Hara v. Ehrich

26 Jones & S. 250, 32 N.Y. St. Rep. 118, 19 N.Y. Civ. Proc. R. 72

Opinion

By the Court.—Truax, J.

Counsel for plaintiff in his brief on this appeal stated that the plaintiff alleged the negligent act of the defendants, that caused the death of the plaintiff’s intestate, was the “ shutting down the doors over a certain shaft or elevator way.” This statement by counsel is not correct. The complaint does contain such an allegation, but it adds to it the allegation “ and the negligent and imperfect construction, management and operation of said elevator thereat by defendants.” The allegation that plaintiff’s intestate was killed by reason of the negligent and imperfect construction, management and operation of the elevator, is not particular enough. In what respect was the elevator negligently and improperly constructed ? In what respect was it negligently and improperly managed and operated ? Or, rather, in what respects does plaintiff expect to prove that the elevator was negligently and improperly constructed, managed and operated, is a question that plaintiff should answer before defendants are brought to trial. Lahey v. Kortright, 55 Super. Ct. 156.

If plaintiff cannot show in what respects she expects to prove that defendants were negligent, she cannot recover in this action. The mere happening of the accident does not place upon the defendants the burden of showing that it did not happen through their negligence.

Order reversed with costs, and plaintiff ordered to furnish within ten days from the service of a copy of this order, a bill of particulars showing in what respect the elevator mentioned in the complaint was negligently or imperfectly constructed, managed .or operated, with ten dollars costs to the defendants to abide the event of this action.

Freedman, J., concurred.