Opinion
February 21, 1908.
William L. O'Brion of counsel [ Frank V. Johnson, attorney], for the appellant.
No appearance for the respondent.
This is an appeal from so much of an order as denies defendant's motion for a bill of particulars. The action is by a servant against a master to recover for personal injuries. The complaint alleges that "the defendants, their agents, servants or employees so carelessly and negligently conducted themselves in the management, charge, care and control of one of the wagons of the defendants, which was under the control and used in the course of their business by the plaintiff herein, who was ordered to drive said wagon * * * that the same collapsed * * * causing the plaintiff to be precipitated to the ground and seriously injured and contused." Information is asked wherein the defendants, their agents, etc., so carelessly and negligently conducted themselves that the wagon collapsed.
The defendants are entitled to know what the plaintiff claims was the negligence which caused the wagon to collapse. The complaint fails to indicate in any manner what was the trouble with the wagon. The plaintiff was its driver and in a position to know what happened, whether the axle broke, the wheel came off or the bottom dropped out, and so whose neglect was responsible therefor. He should state his claim so that defendants may be advised of what they have to meet. He is not required to disclose evidence but to amplify his pleading. ( Causullo v. Lenox Construction Co., 106 App. Div. 575; Dwyer v. Slattery, 118 id. 345; Waller v. Degnon Contracting Co., 120 id. 389.)
He alleges as to his injuries that he was caused to suffer a fracture of his right arm and "severe injuries to his back and side." Defendants are entitled to know what injuries to his back and side are complained of.
Therefore, the order should be modified by requiring the particulars indicated, and as so modified affirmed, with costs to appellant to abide the event.
PATTERSON, P.J., INGRAHAM, LAUGHLIN and HOUGHTON, JJ., concurred.
Order modified as indicated in opinion and as modified affirmed, with costs to appellant to abide event. Settle order on notice.