Wojtczak v. American Manufacturing Co.

152 A.D. 433, 137 N.Y.S. 287, 1912 N.Y. App. Div. LEXIS 8552

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 10, 1912
• Status: Published

Opinion

Rich, J.:

This action is brought by a servant against the master to recover for personal injuries alleged to have been sustained through its negligence. The learned court at Special Term has granted defendant’s motion for a bill of particulars regarding some matters alleged in the complaint, but denied the following, among others: (1) “In what respects was the use, management, control and operation of the machine at which she was employed, dangerous?” (2) “What instruction was required in the use, management, control and operation of said machine, in order that the same might be used and controlled with safety ? ” Negligence is alleged in both of these particulars, but, as was said in Higgins v. Erie Railroad Co. (140 App. Div. 222), “in such a general way as to make,it practically impossible to determine what issues are to be met, and it is no answer to defendant’s demand for a bill of particulars that defendant is in a position to know the facts. The question to be determined is what the plaintiff claims are the facts; that is the issue to be tried, and the defendant has a right to be informed of the issues by the pleadings, a bill of particulars being a part of such pleadings.”

We are of the opinion that this rule requires a compliance with defendant’s demands as quoted above, and the order is modified by including within its requirements the two particulars, and as so modified affirmed, without costs to either party.

Thomas and Woodward, JJ., concurred; Jerks, P. J., and Burr, J., dissented as to the second requirement.

Order modified in accordance with opinion, and as modified affirmed, without costs.