
    Edward Curry et al., Plaintiffs, v. Allen Meier et al., Defendants.
    Supreme Court, Special Term, Kings County,
    July 30, 1958.
    
      Alexander, Ash $ Schwartz for McDonald Trucking Co., Inc., defendant.
    
      Walter J. Boyles for plaintiffs.
   Louis L. Friedman, J.

Defendant McDonald Trucking Co., Inc., moves for an order dismissing the complaint herein on the ground that it fails to state facts sufficient to constitute a cause of action.

The principal objection to the complaint stems from the fact that paragraph Tenth thereof merely alleges, “ That while said motor truck was being operated as aforesaid, defendant, Meier, negligently and carelessly caused and/or permitted the same to be propelled against and/or to collide with the said Oldsmobile automobile ”, but fails to state the facts from which the conclusion of negligence may be drawn.

Although a complaint must be liberally construed, and even though a complaint, when read together with a bill of particulars, may set forth sufficient particulars of the claimed negligence of the defendant, the court holds that this complaint fails to meet the requirement that a pleading shall contain a statement of the ultimate facts rather than conclusions from such facts. In Peterson v. Eighmie (175 App. Div. 113, 116) the court held that a complaint which merely contained a conclusion such as was contained in this case, was demurrable because it merely stated a conclusion of law with respect to negligence on the part of the defendant, ‘ ‘ without setting forth the act of the defendant which it was claimed was negligently performed ’ While the court must give to a complaint a liberal construction when such a complaint is challenged by a motion to dismiss, such motion must be treated as a demurrer, and it is elementary that a demurrer may only be interposed to a pleading for defects which appear on its face. (Mitchell v. Thorne, 134 N. Y. 536.) Therefore, a bill of particulars which may be furnished subsequent to an answer, may not be considered when the court determines the sufficiency of a complaint. (See Harmon v. Peats Co., 243 N. Y. 473.) While there may be some instances where a mere allegation of negligence may be sufficient, as when it appears from other allegations in the complaint that the case falls within the doctrine of res ipsa loquitur, that is not the situation in the present case.

Under all the circumstances, the court holds that the pleading is inadequate, and the motion to dismiss is granted. Leave is granted to the plaintiffs to serve an amended complaint within 20 days after service of a copy of the order to be entered herein, with notice of entry thereof.

Settle order on notice.  