Citations
- 134 A.D. 482
Full opinion text
Scott, J.:
The action is for the death of plaintiff’s intestate resulting from the upsetting of a box of concrete. The complaint alleges that the accident was caused by defendant’s negligence and by reason of defects in the condition of the ways, works, machinery or plant used by defendant.
The order appealed from requires plaintiff to furnish particulars as follows:
First. Wherein the place where plaintiff’s intestate was working was insecure, defective and unsafe, as alleged in paragraph “ fifth ” of the complaint.
Second. Wherein the tools, implements and machinery supplied plaintiff’s intestate were unsafe, improper and defective, as alleged in paragraph “ fifth ” of the complaint.
Third. Exactly where was plaintiff’s intestate at the time he was adjusting the box referred to in paragraph “ fifth ” of the complaint.
Fourth. A specification of what caused the box or receptacle to turn over, as alleged in paragraph “ fifth ” of the complaint.
Fifth. A specification of each and every defect plaintiff claims existed in the ways, works and machinery connected with or used by said defendant at said place, as alleged in paragraph “ sixth ” of the complaint.
The defendant appeals against the qualifying clauses reading as follows: “ Further ordered, that the Bill of Particulars as ordered above shall only be furnished by the plaintiff in so far as the same is within the knowledge or information of the plaintiff, and it is
“ Further ordered, that if the plaintiff is unable to give the details required by this order, she should state on oath that she is unable of her own personal knowledge to furnish the same.”
The first four items call upon plaintiff to state, as of her own knowledge, certain matters concerning which it would be unreasonable to believe that she can have personal knowledge. It does not appear, and is not probable, that she was on the spot when the accident happened, and whatever knowledge she has of the conditions as they then existed must of necessity be obtained from others.
The fifth item of particulars required calls upon plaintiff to specify the defects, etc., which she claims existed. As to this, of course^ the qualifying provisions of the order cannot apply, for it would be a mere evasion for plaintiff to swear that she cannot give a detailed statement of what she claims. If plaintiff is evasive in her replies it will be open- to defendant to move further.
The order should be affirmed, with ten dollars costs and disbursements to respondent.
Ingraham, Laughlin, Clarke and Houghton, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.