Nellis v. Brown-Leipe Gear Co.

PURCELL, J. [1] I think it is well understood by the profession that where a complaint by a servant against his master alleges an injury caused by the master or the master’s superintendent in failing to furnish, the servant a reasonably safe place in which to perform his work, reasonably safe tools or appliances with which to work, incompetency of foreman or fellow servants, and failure to promulgate and enforce proper rules for his protection, the servant, in an action to recover damages, must upon demand furnish a bill of particulars, specifying the particular place where he worked at the time of his injury, what work he was engaged in, in what respect the place of work was- dangerous, what the defect was in the machine or tool furnished him, where the machine was located, and its number, if known, when more than one such machine was in use by the master, th,e name of the superintendent in charge of the work, or the person [757] exercising superintendency, and what rule or rules should have been promulgated for the protection of the servant, or violated, if promulgated. Causullo v. Lenox Con. Co., 106 App. Div. 575, 94 N. Y. Supp. 639; Bjork v. Post & McCord, 125 App. Div. 813, 110 N. Y. Supp. 206. [2] In general, I think it may be said that in negligence actions the plaintiff by his complaint should state specifically the grounds of negligence upon which he intends to rely on the trial. When this is done, the defendant cannot complain, and he goes to court prepared to meet the precise issues tendered. By the adoption of this course the court and parties can see at once what is to be tried, and valuable time is thereby saved. As the complaint here omits to state with definiteness any of the matters above referred to, the motion for a bill of particulars is granted, and an order accordingly may be prepared. If form cannot be agreed upon, it may be submitted for settlement on three days’ notice. Motion costs to defendant to abide event.