Kaplan v. Sher , 106 N.Y.S. 1094 ( 1907 )

Erlanger, J.

The complaint alleges that the defendant put the plaintiff to work at or near a machine used for the manufacture' of buttons, without instructing him as to the manner of operating the same, and without warning him of the dangers reasonably to be expected from the operation thereof; that he had no knowledge of such dangers nor could he have obtained such knowledge without being informed thereof by the defendant or his servants; that, on March 5, 1907, while he was “ working at or near one of said machines, he was seriously injured ” by a portion of his thumb being cut off; that said injury was caused by reason of a defect in the condition of the ways, works or machinery connected with or used in the business by the defendant. Defendant moved for a bill of particulars and the same was granted in so far as to require the plaintiff to state “ whether he was in the act of operating the machine at the time of the alleged injury, and the nature and character of his business which he has been prevented from attending, and the amount of his income, profits or wages which he has been prevented from earning-, and the amounts paid to physicians for medical services.” In all other respects the motion was denied. In addition to the particulars ordered by the court plaintiff should have been required to specify:

1. Whether or not it is claimed at the time of the accident he was put to work to operate the machine, and what he was directed to do; and also

2. In what respect it is claimed the ways, works or machinery connected with or used in the business by the defendant was defective. Causullo v. Lenox Construction Co., 106 App. Div. 575; King v. Brookfield, 72 id. 483; Daly v. Bloomingdale, 71 id. 563; Dwyer v. Slattery, 118 id. 345. The defendant is clearly entitled to the information he seeks, to avoid surprise upon the trial, and in order that he may fairly meet the issue tendered by plaintiff.

The order appealed from should be modified so as to include therein, in addition to what has already been allowed, the two specifications herein mentioned, and as so modified affirmed, with costs to appellant to abide the event.

Gildeesleeve and Leventritt, JJ., concur.

Order modified and as so modified affirmed, with costs to appellant to abide event.