Appellate Division of the Supreme Court of New York, 1908

Biehayn v. New York City Railway Co.

Appellate Division of the Supreme Court of New York · Decided January 10, 1908 · Miller

123 A.D. 652; 108 N.Y.S. 66; 1908 N.Y. App. Div. LEXIS 142

Counsel

■ Bayard H. Ames and Waller Henry Wood \\Henry A. Robinson with them on the brief], for the appellant., Ralph G. Barclay [Robert Stewart with him on the brief], for the respondent.

Opinion of the Court

Miller, J.:

This is an action for personal injuries. The defendant appeals from an order denying a motion for a bill of particulars respecting the plaintiff’s injuries. The complaint -contains a general allegation that the plaintiff was permanently injured, followed by a statement that “his left hip was bruised and injured, his nervous system was shocked and injured, and he was otherwise bruised and injured about the head, body and limbs.” It is well settled that in such case-the defendant is entitled to a bill of particulars specifying the injuries claimed to be permanent. - The. physical examination authorized by the Code of Civil Procedure (§ 873) does not serve the purpose of a bill of particulars. (Baker v. New York City Railway Co., 116 App. Div. 858; 102 N. Y. Supp. 276.)

The order should be reversed and the motion granted, requiring the plaintiff to serve a bill of particulars specifying the injuries claimed to be permanent.

Woodward, Gatnor and Bien, JJ., concurred; Hieschberg, P. J., not voting.

Order reversed, with ten dollars costs and disbursements, and motion granted requiring the plaintiff to serve a bill of particulars specifying the. injuries claimed to be permanent, with costs.

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