Michael L. Daly, Respondent, v. Lyman G. Bloomingdale, Appellant

Michael L. Daly, Respondent, v. Lyman G. Bloomingdale, Appellant. Negligence—bill of particulars as toan elevator being out of repair and as to ikenature,of an accident. The complaint in an action to recover damages for personal injuries sustained- by the plaintiff, an elevator man in the defendant’s employ, alleged that it was-the duty of the defendant to supply him with a reasonably light and safe placo in'which to work,- to provide suitable rules for the operation of the elevator, to supply reasonably safe appliances in and about the elevator and to provide automatic doors; that while operating the elevator on a certain day the plaintiff was injured “by reason of the defendant’s negligence and his disregard, of the said duties.” Held, that the defendant was entitled to a bill of particulars stating in what-respect the elevator was out of repair and not a safe place in which to work, and also a statement of the nature of the accident which caused the injury, especially as it appeared that the defendant knew nothing of the circumstances of the accident or in what respect he was claimed to have failed in his duty. Appeal by the defendant, Lyman G. Bloomingdale, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 6th day of March, 1902, denying the defendant’s motion for a bill of particulars and allowing the plaintiff to serve the bill of particulars submitted on the argument. The action is brought to recover damages for personal injuries sustained by the plaintiff through the alleged negligence of the defendant. The complaint, after alleging that the plaintiff was-employed by the defendant to operate one of the freight elevators in the defendant’s department store, alleged: “ Fifth. That it was the duty of this defendant to supply a reasonably light and safe place in which this plaintiff could perform his duties under his said employment. “ Sixth. That it was the duty of this defendant to provide suitable pules for the running and operating of the said elevator. . ■ “ Seventh. That it was the duty of this defendant to supply reasonably safe appliances in and about the said elevator, and in and about the said place in which this plaintiff was to perform his duties under his employment and for the purposes of the said employment. “ Eighth. That it was the duty of this defendant under the Laws of 1887, chapter 462, section 8, to provide doors over the hatchway or passageway in which this elevator operated, which doors would work automatically and be operated by the same power that,operated the elevator. “ Ni/rith. "That on Or about the 5th day of June, 1901, at about 7.45 o’clock a. m. on said day, this plaintiff, in the course of his said employment, was operating a freight elevator, which is used in the business then and there carried on by this, defendant, and located on the' Sixtieth street side of the building in which the said business is earned on, and that while so operating the said'elevator he was injured, without any fault on his part, and solely through the negligence and carelessness of this defendant, his agents, servants-or employees. “ Tenth. That by reason of the defendant’s negligence, and his disregard' of the said duties, and facts hereinbefore set forth, this plaintiff, without any fault on his part, was injured, bruised and wounded, so that he became sick, sore, lamed and disabled, and was permanently injured, and so remains, and has ever since been, and will for a long time to come be prevented from attending to his. business and unable to labor, and has necessarily expended large sums of money in endeavoring to be cured of his said injuries, to plaintiff’s damage ten thousand ($10,000) dollars.” John W. Hart, for the appellant. M. Casewell Heine, for the respondent. [MAJORITY — Van Brunt, P. J.:] Van Brunt, P. J.: It seems to ns that the defendant was entitled to a bill of particulars stating in what respect the elevator was out of repair and not a safe place in which to work, and also a statement of the nature of the accident which caused the injury. The injury is claimed to have happened in the elevator, but how or where not the slightest intimation was given. It was held in Wilson v. American Steel & Copper Plate Co. (56 App. Div. 527), where it was alleged that the plaintiff was injured in the operation of a machine which was defective and out of repair, that the defendant was entitled to a bill of particulars in the respects to which the machine was defective and out of repair. Without some knowledge in reference to the defects complained of it is impossible for the defendant to prepare for trial. It would appear from the papers on this appeal that the defendant knows nothing of the circumstances of the accident or in what respect he is claimed to have failed in his duty to the plaintiff. We think, under these circumstances, that a bill of particulars, in addition to that permitted to be served, specifying the particulars above referred to, should be allowed. The order, so far as appealed from, should be reversed, with ten dollars costs and disbursements, and the motion for a bill of particulars granted to the extent above indicated. Ingraham, McLaughlin and Hatch, JJ., concurred. Order reversed, with ten dollars costs' and disbursements, and motion granted to extent stated in opinion.