Kupferman v. Batchelor

COHALAN, J.

The order for a bill of particulars was made on the 16th day of June, 1914. Prior thereto an order by another justice of the court, in which it was held that the defendant was entitled to have the name of the employer of the plaintiff. The court followed the case of Quinn v. Fitzgerald, 87 App. Div. 539, 84 N. Y. Supp. 728. On the motion made to enforce full compliance with "the first order, the court ruled, upon the authority of Greene v. Johnson, 126 App. Div. 33, 110 N. Y. Supp. 104, that the defendant was not entitled to the name of the employer. This was in effect to overrule the prior order, from which no appeal had been taken. Under the first order the plaintiff served a-bill of particulars, in which he stated that he was employed at the time referred to by “Siegel & Son.” No concern of that name was found in either of the current issues of the New York City telephone directory, the city directory, or the copartnership directory.

The action is based on negligence, and the plaintiff asserts in his bill of particulars that because of injuries he was unable to attend to his usual occupation for over eight weeks. The defendants desire to subpoena the employers and their books on the trial, to disprove this statement, their information being that the plaintiff’s injuries were of a nominal character, and they consider it necessary for the protection of the defendants’ rights that they be put in a position to- do so. It would seem that the plaintiff, having sought to comply with the first order granted, should have accurately complied with its provisions. If he were dissatisfied with its terms, he should have appealed from the order. Not having done either, he is not now entitled to- have the first order overruled.

The order appealed from should be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs. All concur.