
    Charles Myers, Respondent, v. The Albany Railway, Appellant. Frank Busold, Respondent, v. Same, Appellant.
    
      Bill of particulars in an action for negligence.
    
    In an action brought to recover damages resulting from injuries occasioned to tlie plaintiffs by tlic bursting of a fly wheel operated by the defendant, the only allegation of-negligence contained in the complaint! was as follows: “ That the explosion of the said flywheel was due to the carelessness and negligence and the want of proper care and skill on the part of the defendant or its agents, servants or employees.”
    
      Held, that the defendant was entitled to a bill of particulars stating the particular facts upon which the claim of negligence and want of proper care and skill on the part of the defendant, its servants, etc., was based.
    
      Appeal by the defendant. The Albany Railway, from orders of the Supreme Court, made at the Albany Special Term in each of the above-entitled actions, and entered in the office of the clerk of the county of Albany on the 25th day of February, 1896, denying the defendant’s motion for a bill of particulars.
    
      Edward W. Douglas, for the appellant.
    
      Louis W. Pratt, for the respondents.
   Putnam, J.:

These cases were brought to recover damages for injuries to the plaintiffs caused by the explosion of a fly wheel operated by the defendant in its power house in the city of Albany.

The only allegation in the complaints alleging negligence on the part of the defendant is as follows: That the explosion of the said fly wheel was due to the carelessness and negligence and the want of proper care and skill on the part of the defendant or its agents, servants or employees.”

The complaints in these cases differ from that in the case of Maggie Pielil agclnst the same defendant, where we held that a bill of particulars was not required. They do not allege how the defendant was negligent, or state any facts in that regard. The plaintiffs, upon the trial, may in addition to showing the fact of the explosion, offer evidence to prove that the fly wheel was defective 'before the accident to the knowledge of the defendant; that the defendant failed to have proper and skillful employees to manage the wheel; that it was not properly run, inspected or placed; that the defendant did not have a sufficient number of servants to manage it; that at the time of the accident the wheel was being operated in an improper manner, or other acts or omissions of the defendant.

' As the pleadings now stand, it is obvious that the defendant will be unable in advance to properly prepare to meet evidence that the plaintiffs may offer on the trial, to show negligence on the part of the defendant, in addition to the fact of the explosion of the wheel. Hence, without considering the question whether or not the mere fact that the wheel burst places upon the defendant the burden of showing that the accident did not happen through its negligence, we think bills of particulars should be served, stating what facts, if any, the plaintiffs expect to show upon the trial, besides the fact of the explosion, indicating negligence on the part of the defendant.

In Dwight et al. v. Germania Life Ins. Co. (84 N. Y. 493) it was held that a hill of particulars may be ordered in all descriptions of actions. In a proper case such a bill should be furnished in an action to recover damages for the alleged negligence of the defendant. (O'Hara v. Ehrich, 19 Civ. Proc. Rep. 12 ; Baker v. Sutton, 86 Hun, 588.)

The orders should be reversed and the motions granted requiring the plaintiffs to furnish the defendant with a statement containing the particulars upon which the claim of negligence and want of proper care and skill on the part of defendant or its servants, agents or employees is based, without costs in this court or the court below.

All concurred, except Herrick, J., not sitting.

Orders reversed, without costs, and motion granted in accordance with memorandum filed, without costs.  