Mary Robinson, Respondent, v. David J. Stewart, Appellant

Mary Robinson, Respondent, v. David J. Stewart, Appellant. Action for injury from the defendant’s neglect “ in permitting said, stairway to he in. - a dangerous and insecv/re condition”—hill [of particulars ordered as to its dan-? gerous and insecure condition. In an action brought by a tenant against a landlord to recover damages for per- ■ sonal injuries alleged to have been sustained by the tenant by falling down a stairway provided by the landlord for the common use of the tenants, the complaint alleged that the defendant was negligent “in permitting said stairway to be in a dangerous and insecure condition,” but did not specify in what respect the stairway was dangerous or insecure. Held, that the defendant, upon submitting an affidavit to the effect that he did not know and had been unable to learn by diligent inquiry in what respect the: stairway was dangerous or insecure, was entitled to a bill of particulars specie tying the respects wherein the plaintiff claimed that the stairway was insecure, and dangerous. Appeal by the defendant,. David J. Stewart, from so much of an order of. the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 8th day of January, 1903, as denies the defendant’s motion for a bill of particulars. Bruce P. Duncan,. for the appellant. [MAJORITY — Willard Bartlett, J.:] Willard Bartlett, J.: This is an action by a tenant against a-landlord to recover damages for personal injuries alleged to have been sustained by the tenant in falling down a stairway provided by the landlord for the common use of the tenants in the premises. The complaint alleges that the plaintiff’s fall was occasioned “and said injuries caused solely and wholly through the negligence and carelessness of the defendant, his agents, servants and. employees, in permitting said stairway to be in a dangerous and insecure condition, and in failing to have the proper light in the hallway and to be and remain wholly unlighted in violation of the Laws State of New York and ordinances of the City of New York.” There is no specification whatever showing in what respect the stairway was dangerous or insecure. The affidavit on which the defendant moved for a bill of particulars delares that he does not know in what respect the stairway was in a dangerous and insecure condition or what portion of the stairway is referred to in the allegation of the complaint. He further avers that he has caused diligent inquiries to be made and has been unable to learn in what respect the stairway was dangerous or insecure, but that on the contrary, so far as he has been able to ascertain, it was in a perfectly safe and secure condition at the time of the alleged accident. The plaintiff presented no affidavit whatever in opposition to the motion. We think that the application should have been granted. ( Wilson v. American Steel & Copper Plate Co., 56 App. Div. 527; Daly v. Bloomingdale, 71 id. 563; King v. Brookfield, 72 id. 483.) The possibilities are so numerous as to what the plaintiff may claim on the trial in regard to the actual condition of the stairway which rendered it insecure and dangerous, that the defendant ought to have some intimation in advance in regard to the case which he wil have to meet. , Order reversed, in so far as appealed from, with ten dollars costs and disbursements, and motion, granted'. Goodrich, P. J., Hirsghberg, Jenks and Hooker, JJ., concurred. Order, so far as appealed from, reversed, with ten dollars costs and disbursements, and motion granted.