Dwyer v. Slattery , 103 N.Y.S. 433 ( 1907 )

Houghton, J.:

The action is by an employee to recover for injuries alleged to have been, caused by the negligence of the employer in the conduct . and management of blasting an excavation for a building.

The complaint-alleged, in general terms, that plain tiff was hit by flying rock and splinters scattered by the explosion through the carelessness and negligence of the defendant and his agents or. servants, and particularly because-of the failure of defendant .to make and enforce proper -rules for the safe conduct of such work and by the negligence of the person employed by the defendant to superintend the same.

The defendant moved that'the plaintiff furnish a bill of particulars setting forth his claim as to whether the defendant was personally in charge of the work or whether it was in charge of a servant, and if so, who such servant was or what position he occupied, and in what particular the blast was improperly fired, and of what the negligence therein consisted and what rules should have been -made for the greater safety of the work.

The motion was denied and the order of denial is attempted to be sustained on the ground that the defendant knew as much about the cause of the accident as the plaintiff, and possibly more.

This answer does not meet the situation. 'The question, in applications of this kind is not what may have been the actual facts, nor the knowledge of the' opposite party concerning them, but rather what the aggrieved party claims them to be. "What they are claimed to be is the issue that is to be met and tried, and where the pleading is not specific in this regard a bill of particulars is properly ordered to point out such claims and thus make. definite the issues to be litigated. It is not. the office of a bill of-particulars to expose ' to his adversary the evidence of the party giving it. The purpose of such a bill is to amplify the pleadings and to indicate with more particularity than is ordinarily required in a formal plea the nature of the claim made in order that surprise upon the trial may be avoided and that the issues may be more intelligently met. (Slingerland v. Corwin, 105 App. Div. 310.)

We think the defendant was entitled to know what the plaintiff will claim upon the trial respecting the following matters: Whether the work of blasting was under the personal charge of defendant at the time of the accident or in charge of an employee, and his name or a description of him and his duties; in what claimed negligent manner the blast was tired, or from what claimed negligent cause; what rules should have been made for blasting or warning, or what existing rule was disregarded temporarily or habitually. To this extent the order for a bill of particulars should have been granted.

■ The order is reversed, without costs, and the motion granted as indicated, without costs.

Patterson, P. J., Ingraham, McLaughlin and Clarke, JJ., concurred.

Order reversed, without costs, and motion granted as indicated in opinion, without costs. Settle or der on notice.