Nickel v. Ayer , 126 N.Y.S. 321 ( 1910 )

Clarke, J.:

The complaint alleges that the defendant was the owner of certain premises, including a balcony, porch or piazza maintained thereon ; that said premises were leased by defendant to divers tenants who occupied various parts thereof, the defendant granting to such tenants the rights and privileges to place, attach and put up signs in various parts of said building ; that decedent was engaged in putting up a sign in front of said premises on the first floor thereof at the request of one of the tenants ; that while so engaged and standing upon the said balcony, porch or piazza it collapsed owing to the carelessness, negligence and recklessness of the defendant in maintaining it in a dangerous, defective and unsafe condition whereby decedent was precipitated to the ground and killed.

The answer in the 5th paragraph thereof specifically denied that the alleged balcony, porch or piazza was at any of the times mentioned in the complaint in the possession, occupation or control of this defendant, or that it or any portion thereof was maintained by defendant, and alleges that said balcony, porch or piazza was a portion of and a part and.parcel of that part of said premises under lease to one E. Lucy During who was at all such times in possession, occupation and control of said premises and was under obligations under the terms of said lease to keep the said premises so leased to her in repair, and that at no time did this defendant have any notice or knowledge that the alleged balcony, porch or piazza was in anywise defective or unsafe.

The order required the defendant to give a bill of. particulars giving the full name and present address of one. E. Lucy During,, a copy of the alleged lease made by the defendant with date of the execution of the saíne, with a copy or copies of any lease or leases executed by the defendant to the tenants for said premises and particularly the lease or leases covering the first and second floors of said premises and stating the dates of execution. .

It is obvious, it seems to us, that the matters required by the bill of particulars are purely evidentiary and not proper subjects for such an order which is to obtain a statement of the opposing party’s claim and not the evidence in support or refutation thereof.

We are further of the opinion, that the matters stated in the answer of which particulars are required are pure surplusage.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

■ Ingraham, P. J., Scott, Miller and. Dowling, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.