Mary A. Higgins, as Administratrix, etc., of Frank Higgins, Deceased, Respondent, v. Erie Railroad Company, Appellant

Mary A. Higgins, as Administratrix, etc., of Frank Higgins, Deceased, Respondent, v. Erie Railroad Company, Appellant. Second Department, October 7, 1910. Pleading — negligence — bill of particulars. Where the complaint in an action to recover for personal injuries alleges in ' general language the negligence of the defendant in providing unusual and improper machinery, in failing to give proper instructions and in failing to promulgate proper rules, the defendant is entitled to a bill of particulars of those items. It is no answer to say that the defendant is in a position to know the facts. Appeal by .the defendant, the Erie Railroad Company, from so much of an order of the Supreme Court, made at the Orange Special Term and entered in the office of the clerk of the county of Orange on the 28th day of March, 1910, as denies the defendant’s motion for a bill of particulars as to three matters alleged in the complaint. John Bright [Thomas Watts with him on the brief], for the appellant. William, P. Gregg, for the respondent. [MAJORITY — Woodward, J.:] Woodward, J.: This is an action to recover damages for personal injuries resulting in the death of plaintiff’s son. The cofnplaint alleges, in very general language, a cause of action growing out of an accident which occurred while the deceased was engaged in oiling machinery in defendant’s rail shop at Port Jervis, and the learned court at Special Term has granted defendant’s motion for a bill of particulars in respect to a portion of the matters alleged in the complaint, and denied the following of a like nature : “1. In what respects and in what manner does plaintiff claim that the machinery provided and maintained by defendant was unusual and improper.” “3. What proper and usual instructions and protection does plaintiff claim defendant failed to give decedent in connection with his work. “ 4. What proper and usual rules for the protection of decedent does plaintiff claim defendant failed to make, have and promulgate.” The complaint alleges negligence in all of these matters, but 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. The order appealed 'from should be reversed, and defendant’s motion should be granted. Hirsohberg, P. J., Burr, Thomas and Rich, JJ., concurred. Order, in so far as appealed from, reversed, with ten dollars costs and disbursements, and motion granted.