New York Edison Co. v. McDonald

Wadhams, J. The action is brought to recover the cost to plaintiff of caring for, repairing and changing its wires, cables, structures and underground service near Lenox [64] avenue, made necessary by reason of the construction of subsection No. 8 of the subway. Motion is made for a bill of particulars by the defendants Farrell and Hopper. In their answer they admit entering into a contract with the defendant McDonald for the construction of subsection No. 8, and that they in turn subcontracted with the defendant Rodgers for part of this section. The demand for the bill of particulars contains ten paragraphs. The fourth paragraph demands : “ What defendants and what agents, servants or employees of what defendants the plaintiffs claim did the acts alleged * "x" * and on what dates.” The plaintiff will be required to state the dates on which the alleged interference, obstruction and undermining of its property occurred, but will not be required to give the other information. In Slingerland v. International Con. Co., 28 Misc. Rep. 319; affd., 43 App. Div. 620, the court said: “ The information which the International Contracting Company mainly seeks from the plaintiff is * * * the names of the agents, servants and employees of the said Contracting Company, together with the names of the tugs and numbers of scows which deposited said material. I think it quite apparent that if the Contracting Company * * * committed the acts complained of, the information sought by this bill of particulars is peculiarly within its knowledge. If it did none of the acts, the necessary evidence is clearly accessible to it. In no event, I think, can it be taken by surprise on the trial, and the furnishing of a bill of particulars would have the effect of limiting plaintiff’s evidence rather than disclosing to the defendant any information which is necessary for its preparation for trial.” See also Messer v. Aaron, 101 App. Div. 169, 111. The reasoning applies equally to the demand that plaintiff specify which of the defendants did the alleged acts, as these defendants must he aware whether or not the acts were done by them. The same ruling is made to so much of the fifth and sixth demands as requires the names of the defendants, their agents, servants or employees. That portion of the ninth demand which inquires “ under what terms and provisions of what contracts the plaintiff claims the defendants were required to make said changes, alterations and [65] repairs ” will not be granted. As it appears that Farrell and Hopper admit making the only contracts in question they have equal opportunity with plaintiff to familiarize themselves with the terms of these contracts, and the effect of such terms is clearly a matter of legal construction for the court and not a particular to be specified by a bill of particulars. Constable v. Hardenberg, 76 Hun, 434, 437. In the third paragraph the defendants request a bill of particulars as to the sum allowed as a credit memorandum. It has been held that the court will not compel a plaintiff to furnish a statement of the particulars of the items allowed as an offset. Case v. Pharis, 106 N. Y. 114, 118; Williams v. Shaw, 4 Abb. Pr. 209. This demand will, therefore, not be allowed. In parts of the first, fifth, sixth and eighth paragraphs the defendants demand to know whether the plaintiff’s property mentioned was “ actually interfered with, obstructed, undermined, or about to be interfered with, obstructed or undermined.” The complaint alleges that defendants interfered with, etc., or were about to interfere with, etc., its electrical subways, mains, conduits, wires, cables, devices, conductors, house connections, sub and supersurface systems and other property, and that plaintiff moved, altered, readjusted, rebuilt and repaired such of said property as was interfered with, obstructed or undermined, or was about to be interfered with, obstructed and undermined by the acts of the defendants. Plaintiff contends that it is immaterial whether the damage was occasioned because plaintiff’s property was interfered with or because it was about to be interfered with, and that it was plaintiff’s duty to anticipate the interference and protect its property. In my opinion it is a particular which may be material. Whether the cost was incurred in protecting property which plaintiff deemed'to be in danger, but which defendants were, in their opinion, protecting or would have protected had it not been removed or cared for by plaintiff, presents questions which defendants may prepare to meet by demanding a bill of particulars. - It is conceded that defendants are entitled to the other particulars demanded. Settle order on notice.