Opinion
May Term, 1902.
John W. Hart, for the appellant.
M. Casewell Heine, for the respondent.
It seems to us that the defendant was entitled to a bill of particulars stating in what respect the elevator was out of repair and not a safe place in which to work, and also a statement of the nature of the accident which caused the injury. The injury is claimed to have happened in the elevator, but how or where not the slightest intimation was given. It was held in Wilson v. American Steel Copper Plate Co. ( 56 App. Div. 527), where it was alleged that the plaintiff was injured in the operation of a machine which was defective and out of repair, that the defendant was entitled to a bill of particulars in the respects to which the machine was defective and out of repair. Without some knowledge in reference to the defects complained of it is impossible for the defendant to prepare for trial. It would appear from the papers on this appeal that the defendant knows nothing of the circumstances of the accident or in what respect he is claimed to have failed in his duty to the plaintiff. We think, under these circumstances, that a bill of particulars, in addition to that permitted to be served, specifying the particulars above referred to, should be allowed.
The order, so far as appealed from, should be reversed, with ten dollars costs and disbursements, and the motion for a bill of particulars granted to the extent above indicated.
INGRAHAM, McLAUGHLIN and HATCH, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted to extent stated in opinion.