Opinion
June, 1906.
Appell Taylor (George H. Taylor, Jr., of counsel), for appellants.
Jacob Frank, for respondent.
The action is for damages for personal injuries sustained by the plaintiff while working in the factory of the defendants as their employee.
After setting out the relation of the parties and the happening of the accident, the plaintiff describes the defendants' negligence in paragraph "Fourth" of the complaint as follows:
"Fourth. That the accident was caused solely through the carelessness and negligence of the defendants, in that the defendants failed to properly instruct or warn the plaintiff with regard to the difficulties and dangers in operating said machine, and in that the defendants failed to provide the plaintiff with a safe place to work in, in that the defendants failed to provide the plaintiff with safe, proper and suitable machinery and appliances, in that the said machine and the apparatus connected therewith, furnished by the defendants was unsafe and improper and was not constructed and kept in a state of repair, so as to give proper protection to the life and limb of the persons so engaged thereon, in that the defendants failed to provide said machinery with proper and suitable appliances which would protect the life and limb of persons working on it, and in that the defendants failed to employ competent superiors, in that the defendants failed to comply with the laws of the State of New York applicable to factories, and in that the defendants failed to exercise the care, caution and prudence imposed upon them by the law of this State, required by reason of the character and nature of the work in which the plaintiff was then engaged, and that the defendants knew of said inexperience of plaintiff and of the dangerous machinery and its unguarded and defective condition, and the insecure and dangerous place which the defendants provided the plaintiff to work in; and the plaintiff in no wise contributed to the happening of said accident."
The defendants, claiming that they were not thereby sufficiently apprised of the acts of negligence with which they were charged, sought by motion to require the plaintiff to make that paragraph of the complaint definite and certain in nine respects, enumerated as follows:
"(1) The difficulties and dangers attending the operation of the machine alleged in said paragraph of the complaint are not specified."
"(2) The respect in which the defendants failed to provide plaintiff with a safe place to work in is not specified."
"(3) The respect in which the plaintiff was not furnished by the defendants with safe, proper and suitable machinery and appliances and the respect in which the said machinery and appliances was not safe, proper and suitable, is not specified."
"(4) The respect in which the machine and apparatus was unsafe and improper and not properly constructed and kept in a state of repair is not specified."
"(5) The respect in which the machinery and appliances were not proper and suitable is not specified."
"(6) The respect in which the superiors of the plaintiff employed by the defendants, were not competent, is not specified."
"(7) The respect in which the defendants failed to comply with the laws of the State of New York applicable to factories, is not specified."
"(8) The respect in which defendants failed to exercise the care, caution and prudence imposed upon them by the Laws of this State, is not specified."
"(9) The respect in which the machinery was dangerous and unguarded and defective, and the place where plaintiff worked, was insecure and dangerous, is not specified."
From an order denying their motion this appeal is taken. The defendants have misconceived their remedy. It is only where a pleading is so indefinite and uncertain that the precise meaning or application thereof is not apparent that its definiteness and certainty are open to criticism. Here the complaint informs the defendants with unusual precision of the various acts of omission and commission for which the plaintiff intends to hold them accountable.
The purpose of the Code provision here invoked (§ 546) is to enable an adverse party to plead safely and intelligently. That the defendants can certainly do to the pleading served.
They do not require the details demanded for the purposes of their answer, though they may for the purposes of the trial. What they really want is a more particular statement of the plaintiff's claim with a view to protecting themselves against surprise and limiting the issues at the trial. A bill of particulars will supply that want. Application therefor, after issue joined, is the proper remedy.
GILDERSLEEVE and McCALL, JJ., concur.
Order affirmed, with costs and disbursements.