MULLER v. BUSH, &c. MANUFACTURING CO.

MULLER v. BUSH, &c. MANUFACTURING CO. N. Y. Supreme Court, Second Department ; General Term, December, 1884. Action fob Negligence.—Bill of Pabttculabs. Great caution should be exercised by the courts in requiring parties to furnish particulars in actions for negligence. It is usually impossible for a plaintiff to know with any degree of precision what his proof will be, and the bill of particulars would in most cases of that character be an instrument of embarrassment and injustice. So held, on affirming an order denying a motion for a bill of particulars of the items of damages in an action for injuries to plaintiff’s house from an explosion in defendant’s oil works, where the complaint stated the injuries with considerable particularity, and it appeared that defendant had examined the premises, and that the plaintiff had not yet repaired the house because of a tenant’s occupation, so that he could not give his exact damages. Appeal from an order denying defendant’s motion for a bill of particulars. George F. Muller sued the Bush and Denslow Manufacturing Company to recover damages to plaintiff’s house from an explosion in defendant’s oil-works in the neighborhood. The defendant, under Code Civil Procedure, § 531, moved for a bill of particulars of the plaintiff’s claim, upon affidavits, stating among other things the merits of the defense; that the defendant possessed no knowledge concerning the character of the property injured, and could not obtain it after diligent inquiry, and could not proceed to trial safely without the particulars sough t for. The plaintiff in opposition showed that the defendant had fully examined the injuries before the motion ; had been given full opportunity so to do, and knew as much about it as the plaintiff ; and, further, that the-builders had not yet repaired the injuries, as the premises were occupied by a tailor, who, being then in his busy season could not be disturbed, and the plaintiff could not therefore give his 'exact damages. The motion was denied, and from the order entered thereon, defendant appealed to the general term. Alfred B. Oruilcshanlc, for the defendant, appellant, I. Defendants were entitled to the particulars, to inform them of the precise -limit of the plaintiff’s claim (Stebeling v. Lockhaus, 21 Hun, 457; Tilton v. Beecher, 59 N. Y. 176, 184 ; Dwight v. Germania Ins. Co., 22 Hun, 167, 173 ; People ex rel. Swinburne v. Nolan, 10 Abb. N. C. 471, 479 ; Matthews v. Hubbard, 47 N. Y. 428). Bills of particulars have been given in imilar cases (Robinson v. Comer, 13 Hun, 291 ; Leigh v. Atwater, 2 Abb. N. C. 419 ; Gee v. Chase Manf. Co., 12 Hun, 630 ; Wetmore v. Jennys, 1 Barb. 53 ; Miller v. Kent, 60 How. Pr. 388; Mayor, &c. of N. Y. v. Marrener, 49 How. Pr. 36; Eberhardt v. Schuster, 6 Abb. N. C. 141; Friedburger v. Bates, 24 Hun, 375). II. The objection that plaintiff is not yet possessed of full information is no answer to the motion (People ex rel. Swinburne v. Nolan, 10 Abb. N. C. 471, 480). III. The discretion to grant the motion rests finally with the general term (Miller v. Kent [above] ; Security Bank v. National Bank of Commonwealth, 2 Hun, 287; Jeffras v. McKellop, 2 Hun, 351). Henderson Benedict, for the plaintiff, respondent. I. A bill of particulars should not be granted of damages in negligence cases, whether the injuries be to person or property (Bernhard v. Dyer, 3 Monthly L. Bull. 92; Dooley v. Royal B. P. Co., 1 Id. 18; Murphy v. Kip, 1 Duer, 659 ; People v. Marquette, 39 Mich. 437; Retallick v. Hawkes, 1 Meeson & W. 573 ; Peters v. Philadelphia, 12 W. N. C. [Pa.] 51: Wicks v. Macnamara, 3 H. & N. 568 ; 27 L. J. Exch. 419 ; Stannard v. Ullithorne, 3 Bing. N. C. 326; Walker v. Fuller, 29 Ark. 448). II. The defendants were allowed full opportunity to examine the injuries, availed themselves of the privilege before the motion, and knew as much as the plaintiff about it. This alone bars the motion (Depew v. Leal, 5 Duer, 663 ; Powers v. Hughes, 39 Super. Ct. [J. & S.] 482 ; Young v. De Mott, 1 Barb. 30 ; Blackie v. Wilson, 6 Bosw. 681). III. Defendants should have moved to make the complaint more definite. The evidence can be obtained by an examination before trial. The order was discretionary and should be affirmed. [MAJORITY — Dykman, J.] Dykman, J. The plaintiff has commenced this action 'to recover damages sustained by reason of injuries to his house from an explosion in the defendant’s oil-works. The complaint stales the injuries with considerable particularity, and the amount of damage sustained. The defendant, desiring a bill of particulars of the items of damages, made a motion therefor to the special term, which was denied, and an appeal is brought from the order of denial. This is not a case where the plaintiff should be required to furnish particulars. The action is for damages which the plaintiff cannot specify with certainty; the amount will depend on proof to be furnished after examination of the injuries, and may well consist of the testimony of experts. Great caution should be exercised by the courts in requiring parties to furnish particulars in actions for damages resulting from negligence. It is usually impossible for a plaintiff to know with any degree of precision what his proof will be, and the bill of particulars would in most cases of that character be an instrument of embarrassment and injustice. In this case the discretion of the court was wisely exercised, and the order should be affirmed with ten dollars costs and disbursements. Barnard, Ch. J., concurred. Order affirmed with $10 costs and disbursements.