Opinion
December Term, 1897.
Henry G. Ward, for the appellant.
Ira B. Wheeler, for the respondent.
The office of a bill of particulars is to limit the generality of a pleading and to prevent surprise upon the trial, and not to furnish evidence for the opposite party; and in actions for negligence care should be taken not to require particulars which it is impossible to know with any degree of precision, dependent, as the plaintiff must to some extent be, upon his proof; as otherwise they may serve only as a source of embarrassment or injustice. Neither should the plaintiff be compelled to give details which the defendant is more likely to know than the plaintiff to be able to furnish. In the case of Reardon v. New York Consolidated Card Company (50 N.Y. Super. Ct. 514) some of these rules were recognized and applied. There the complaint was made that a card-cutting machine belonging to the defendant was defective, and the court refused to require the plaintiff to point out in what particular it was defective, because the defendant had the means of testing the machine by every-day experience and finding out exactly what its condition was. The defendant here claims that it cannot test the pipes which exploded and have been destroyed, and that, therefore, this case is to be distinguished. Here the name of the steamer, its precise location, the position of the deceased at the time of the accident, the particular room where it occurred, the part of the machinery which exploded, and the situation of it, are not only stated, but admitted. The defendant's insistence that the machinery on board the steamship St. Paul is extensive and complicated, and the pipes, valves and connections are innumerable and related to each other, is misleading, because here the plaintiff states not that all the piping and other machinery were insecure and defective, but that only the piping and a particular part of it, namely, the valve box, located and designated in a particular part of the ship, were defective, unsafe and insecure. I think the allegation is sufficiently specific, and that the plaintiff should not be required to state his evidence — for that is really what is asked. The plaintiff alleges that the valve box near the athwartship bulkhead in the engine room, where the deceased was, exploded. This was caused by the defendant's providing unsafe piping and other machinery, including the valve box. The defendant need not go through all the complicated machinery of the ship to prepare for trial. It has only to look at its exploded valve box in this particular room, and the piping and machinery connected therewith. All that is in its own hands. Why should the plaintiff, who is an outsider, be required to point out the particular piping — the particular machinery — which was so unsafe as to cause the explosion? It would seriously embarrass the plaintiff to be put to this test now; while the charge is so clear and concrete that it cannot prejudice the defendant to deny its application.
We think the order should be affirmed, with costs.
BARRETT and RUMSEY, JJ., concurred; VAN BRUNT, P.J., and INGRAHAM, J., dissented.
We think that the complaint is so indefinite as to the statement of the negligence of the defendant that it is entitled to be apprised of the particular defect, or of the particular portion of the machinery which it is claimed was defective, and which caused the valve box, or the neck thereof, to explode. The plaintiff alleges that the defendant provided and used unsafe, defective and insecure piping and other machinery. This allegation is entirely indefinite as to the machinery that was unsafe, defective and insecure. If it is intended to allege that the valve box, or the neck thereof, was defective, that would present an issue as to whether or not the defendant was negligent in continuing to use such valve box; but the allegation is much more comprehensive and would apply to any of the machinery upon the ship as being insecure and unsafe, and as having caused or contributed to the explosion of the valve box. If the plaintiff makes such a claim he should specify it and give the defendant an opportunity upon the trial to meet the charge as to any specific part of the machinery which was alleged to be unsafe, defective and insecure. I think that, to that extent, the motion should have been granted and the plaintiff required to furnish a bill of particulars specifying the particular part of machinery alleged to be unsafe, defective and insecure. The fact that the defendant asked for a bill of particulars prior to the service of the answer, which was then refused by the plaintiff's attorney, would not justify the court in denying this motion. The allegation as to the defective machinery was upon information and belief, and the defendant could deny that allegation without requiring a specification of the particular portion of the machinery required. It does not appear that the defendant would have been entitled to a bill of particulars before answer; but, for the purpose of giving to the defendant notice of the particular defect alleged, so as to be able properly to prepare for trial, a specification of the particulars of the machinery alleged to be unsafe is necessary.
I dissent, therefore, from an affirmance of this order.
VAN BRUNT, P.J., concurred.
Order affirmed, with costs.