
    Keairns v. Coney Island & B. R. Co.
    
      (Supreme Court, General Term, Second Department.
    
    June 25, 1888.)
    Negligence—Pleading—Bill of Particulars.
    Plaintiff alleged, in his complaint that he was the driver of one of defendant’s oars, and was, through defendant’s negligence, injured by being thrown from the car, which “was out of repair, and in an unsafe condition; ” and another averment, on information and belief, specifies certain particulars in which it was out of repair and in an unsafe condition. Held, that an order requiring plaintiff to stipulate that he would give no testimony as to any defects other than those specified in the complaint, or to furnish a hill of particulars setting out all alleged defects, was proper.
    Appeal from special term, Kings county; Charles F. Brown, Justice.
    Action by James Keairns, an infant, by his guardian ad litem,, Michael Keairns, against the Coney Island & Brooklyn Railroad Company, for injuries sustained by plaintiff being thrown from one of defendant’s cars, upon which he was employed as driver. Plaintiff appeals from an order requiring him to stipulate to give no testimony as to any defects in the running-gear or platform of the car other than those specified in his amended complaint, and, in default of his so stipulating, that he furnish a bill of particulars setting forth in full and in detail the claim of the plaintiff, specifying in what the negligence of the defendant consisted.
    Argued before Barnard, P. J., and Pratt, J.
    
      Carpenter & Roderick, for appellant. Bergen & Bykman, for respondent.
   Barnard, P. J.

This action is brought to recover damages occasioned, as alleged, by defendant’s negligence. The plaintiff is a car-driver upon defendant’s road. The complaint contains an exceedingly general averment of negligence, in that the car he was driving was “out of repair, and in an unsafe and dangerous condition.” The complaint subsequently particularizes the defect, as to state that “on the plaintiff’s information and belief, that the dangerous and unsafe condition of said car was caused by the running-gear of said car being defectively constructed and out of repair; the ratchet-wheel and dog being insufficient and out of repair, the brake-shore and brake-chain not properly adjusted and out of repair, the platform of said car being out of repair, and said car not being supplied with a brake-guard, brake-rail, or dashboard,—in consequence of which dangerous and unsafe condition the said car could not be safely operated. ” It is uncertain whether the specific defects named in the running-gear and platform are all the defects relied on by plaintiff to make out his cause of action. The defendants, to prepare for trial, should know where the negligence consists which is to be the ground of recovery against the defendants. The order, therefore, is just and reasonable. If the plaintiff has in view the existence of defects which he could prove, under general allegations of negligence, other than those he has named in the complaint, he should furnish a specification of them to the defendant. If he has no such proof, the order does not touch him, for it is only in case of default, “except those set forth in the amended complaint,” that he is to give a bill of particulars. The order should therefore be affirmed, with costs and disbursements.

Pratt, J., concurs.  