Biehayn v. New York City Railway Co.

Full title: LOUIS E. BIEHAYN, an Infant, by ALBERT BIEHAYN, His Guardian ad Litem…

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: Jan 10, 1908

123 App. Div. 652 (N.Y. App. Div. 1908)

108 N.Y.S. 66

Opinion

January 10, 1908.

Bayard H. Ames and Walter Henry Wood [ Henry A. Robinson with them on the brief], for the appellant.

Ralph G. Barclay [ Robert Stewart with him on the brief], for the respondent.

MILLER, J.:

This is an action for personal injuries. The defendant appeals from an order denying a motion for a bill of particulars respecting the plaintiff's injuries. The complaint contains a general allegation that the plaintiff was permanently injured, followed by a statement that "his left hip was bruised and injured, his nervous system was shocked and injured, and he was otherwise bruised and injured about the head, body and limbs." It is well settled that in such case the defendant is entitled to a bill of particulars specifying the injuries claimed to be permanent. The physical examination authorized by the Code of Civil Procedure (§ 873) does not serve the purpose of a bill of particulars. ( Baker v. New York City Railway Co., 116 App. Div. 858; 102 N.Y. Supp. 276.)

The order should be reversed and the motion granted, requiring the plaintiff to serve a bill of particulars specifying the injuries claimed to be permanent.

WOODWARD, GAYNOR and RICH, JJ., concurred; HIRSCHBERG, P.J., not voting.

Order reversed, with ten dollars costs and disbursements, and motion granted requiring the plaintiff to serve a bill of particulars specifying the injuries claimed to be permanent, with costs.