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See End of Index for Tables of New York Supplement Cases in Other

Reports

J

THE

NEW YORK SUPPLEMENT

VOLUME 146

FERNET v. JAMES STEWART & CO., Inc.

(Supreme Court, Special Term, Albany County. February 28, 1914.) 1. PLEADING (§ 318*)—BILL OF PARTICULARS-NECESSITY OF FURNISHING. In a personal injury action by an injured servant, where the defendant set up as defenses the servant's contributory negligence, the negligence of fellow servants, and assumption of inherent risks, it is not an abuse of discretion to require defendant to furnish plaintiff with a bill of particulars setting forth his contributory negligence, the negligence of his fellow servants, and the inherent risks of the employment which he assumed.

[Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 963-969, 971; Dec. Dig. § 318.*]

2. PLEADING (§ 323*)-BILL OF PARTICULARS.

An order for a bill of particulars should not require the defendant to disclose to the plaintiff substantially all of the evidence necessary to support his claim.

[Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 976-979; Dec. Dig. § 323.*]

3. PLEADING (§ 318*)-BILL OF PARTICULARS.

A defendant will not be ordered to furnish a bill of particulars of allegations in his answer which are wholly superfluous.

[Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 963-969, 971; Dec. Dig. § 318.*]

Action by Ovilion Fernet against James Stewart & Co., Incorporated. On motion by plaintiff requiring the defendant to serve a bill of particulars. Motion granted.

J. S. Carter, of Cohoes, for plaintiff.

R. A. Mansfield Hobbs, of New York City (J. Sheldon Frost, of Albany, of counsel), for defendant.

RUDD, J. [1-3] Motion by plaintiff requiring the defendant to serve a bill of particulars of the affirmative defenses set up in defendant's answer, to wit: First. The facts which constitute the acts of contributory negligence, of which defendant claims plaintiff is guilty. Second. The name or names of the fellow servant or servants whose alleged negligence or fault caused or contributed to plaintiff's injuries as alleged by defendant. Third. The facts showing the risks inher*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 146 N.Y.S.-1

ent in the employment of the plaintiff and incident thereto as claimed by defendant.

An order for a bill of particulars should not require the defendant to disclose to the plaintiff substantially all the evidence in his possession necessary to support his claim. Posner v. Rosenberg, 149 App. Div. 270, 133 N. Y. Supp. 702. A defendant will not be ordered to furnish a bill of particulars of allegations in his answer which are. wholly superfluous. Nickel v. Ayer, 141 App. Div. 576, 126 N. Y. Supp. 321. Neither one of the above cases is here controlling. This does not seem to be an application requiring defendant to disclose all his evidence. Neither does it relate to an allegation in defendant's answer which is superfluous.

In Dwyer v. Slattery, 118 App. Div. 346, 103 N. Y. Supp. 433, it was held that plaintiff must give the name of an alleged negligent employé in charge of blasting at the time of the happening of an accident in which plaintiff was injured.

In an action brought under the Labor Law to recover for personal injuries to plaintiff's intestate, resulting in his death, the defendant may be required to furnish a bill of particulars of the alleged contributory negligence of the deceased, when pleaded as an affirmative defense. Szymanski v. Contract Process Co., 82 Misc. Rep. 46, 143 N. Y. Supp. 604, citing Dwight v. Germania Life Insurance Co., 84 N. Y. 493.

In Havholm v. Whale Creek Iron Works, 159 App. Div. 578, 144 N. Y. Supp. 833, it was held that the court may in its discretion require defendant to give a bill of particulars of the affirmative defenses of contributory negligence and assumed risk.

Justice Stapleton, writing the opinion for the unanimous court, said: "We see no reason why one who alleged in a verified pleading a general charge of contributory negligence should have any difficulty in particularizing. No greater burden is imposed upon the master in this respect than is imposed upon the employé with respect to the allegation of the master's negligence. The Legislature must be deemed to have legislated in contemplation of the frequent exercise by the courts of the power to require bills of particulars of affirmative defenses. The courts should act in harmony with the purposes of this reparative legislation, and should not be astute to discover nice grounds for differentiation which would impair its force and weaken its effect."

Under the authorities cited, which in large measure are controlling upon this court, it certainly does not seem that it would be an abuse of the discretion vested in the court to grant the order for which the motion is made.

An order may be entered requiring the defendant to serve a verified bill of particulars specifying in detail as set forth above, without

costs.

YOUKER v. POST.

(Supreme Court, Appellate Division, Second Department. February 27, 1914.) Appeal from Special Term, Kings County.

Action by W. Earl Youker, as Trustee in Bankruptcy, against Mary Elizabeth Post, as executrix. From an order denying his motion for judgment on the pleadings, plaintiff appeals. Affirmed.

Argued before JENKS, P. J., and BURR, THOMAS, RICH, and PUTNAM, JJ.

George W. McKenzie, of Brooklyn, for appellant.

Melville H. Cane, of New York City, for respondent.

PER CURIAM. Order affirmed, with costs and disbursements.

BURR, J. I dissent. The denial in this case is of the allegations "contained in the paragraphs of the complaint numbered II, IV, V, and VI," with two exceptions not important.

When the case of Curran v. Arp, 141 App. Div. 659, page 662, 125 N. Y. Supp. 993, was before this court, in the opinion which I then wrote, I tried to point out that a conjunctive denial of this sort was bad. Woodward, J., concurred with me; Hirschberg, P. J., thought that this form of denial was good, and so wrote; Thomas and Rich, JJ., concurred in the result, which was for a reversal of an order granting a motion for judgment on the answer as frivolous. While contending that the answer was bad, I also voted for a reversal of the order granting judgment upon it, upon the ground that argument was required to establish its defects. I think that the question is therefore an open one in this court.

The case of Kirschbaum v. Eschmann, 205 N. Y. 127, 98 N. E. 328, seems to me to be an authority for appellant instead of for respondent. In that case the form of the denial was of "the allegations contained" in such and such paragraphs of the complaint. The court said, "This is not good pleading" (see pages 131 and 132 of 205 N. Y., page 329 of 98 N. E.), and pointed out the reasons therefor. If that case is not good as to the allegations contained in separate paragraphs, a conjunctive denial as to a number of paragraphs must be worse. I have examined the original record in the Kirschbaum Case, and find that the denials there were in the form of separate denials of the allegations contained in specified paragraphs. In that case, where the motion for judgment was made at the trial, the court held that when the attention of the pleader was not called to the defects of his pleading by a motion before trial, so that the "pleader then has the opportunity to establish his good faith, if he can," and may be permitted to change or amend his pleading, if necessary, and he can do so (see page 134 of 205 N. Y., page 330 of 98 N. E.), the motion should not be granted. The court concludes: "The judgment should not be sustained for the reason that the plaintiff should make his motion before trial.”

That was precisely what was done in this case, and the pleader's attention was called to its defects. I concede that this form of con

junctive denial is frequently employed at the present time. Nevertheless it is loose pleading. It is to be hoped that the question may be taken to the Court of Appeals, and that it may there be finally determined whether its use is to be countenanced. It seems strange, when it is so easy to employ the language "denies each and every allegation in paragraphs II, IV, V, and VI, respectively," that this less scientific method should be followed.

(160 App. Div. 740)

OCHS v. WOODS.

(Supreme Court, Appellate Division, First Department. February 20, 1914.) FRAUD (§ 59*)—ACTIONS-DAMAGES Sustained.

Plaintiff was employed by defendant to procure a tenant for a theater, and was to receive as commissions a certain percentage of an excess of rental paid over $15,000 a year, and, upon procuring a tenant, was informed by defendant that another was the owner of the theater and then fraudulently represented, as alleged, that the owner was solvent. Plaintiff, when informed as to the true owner, refused to disclose to defendant the name of his prospective tenant, and proceeded to make a contract with the owner to procure a tenant, and, upon the owner's failure to pay him commission provided, sued defendant for damages for fraudulently representing to plaintiff that the owner was solvent. Held, that since plaintiff had never earned any commissions under his original contract with defendant when the alleged fraudulent representations were made, and there was no evidence that a lease would have been executed had such representations not been made, he could only recover from defendant nominal damages for defendant's alleged deceit.

[Ed. Note. For other cases, see Fraud, Cent. Dig. §§ 60-62, 64; Dec. Dig. § 59.*]

Appeal from Trial Term, New York County.

Action by Lee A. Ochs against Albert H. Woods. From a judgment for plaintiff and order denying a motion for new trial, defendant appeals. Reversed and complaint dismissed.

Argued before INGRAHAM, P. J., and McLAUGHLIN, LAUGHLIN, CLARKE, and SCOTT, JJ.

Nathan Burkan, of New York City, for appellant.

Louis Frankel, of New York City (Milton M. Goldsmith, of New York City, on the brief), for respondent.

LAUGHLIN, J. This is an action to recover damages for fraud. and deceit. The alleged fraud and deceit consist in false representations with respect to the financial condition of the Brooklyn Court Theatre Company, whereby the plaintiff was induced to accept that company instead of the defendant as his principal under an employment to obtain a tenant for a term of years for the Court Theatre.

Plaintiff alleged that on or about the 16th day of February, 1911, he was employed by the defendant to procure a tenant for the Court Theatre at a rental of $15,000 per annum, $5,000 of which was to be payable in advance, and that plaintiff was to receive, as commissions.

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

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