
    Margaret J. O’Hara, Adm’rx, Resp’t, v. Samuel W. Ehrich et al., App’lts.
    
      New York Superior Court, General Term
    
    
      Filed June 27, 1890.
    
    Bill op paktioulabs — Negligence.
    The complaint in an action for negligence alleged that the death oi plaintiffs intestate was caused by the negligence of defendants in shutting down the doors over a certain shaft or elevator way * * * from th< negligent and improper construction, management and operation of saie elevator thereat by-defendants. Held, that defendant was entitled to t bill of particulars showing in what respect the elevator was negligently oi improperly conslructed, managed or operated.
    Appeal from an order made at special term denying a motior made by the defendants for a bill of particulars as to the respects in which defendants acted unlawfully, carelessly and negligently in shutting down the doors or with the elevator shaft mentioned in the- complaint; also, in what respect the elevator was negli gently or imperfectly constructed, managed or operated, and also in what respect it was inadequately lighted.
    Action brought to recover the statutory $5,000 damages foi the death of John T. O’Hara, alleged in the complaint to have beer caused “ by reason of the unlawful, careless and negligent acts o: the defendants in shutting down the doors over a certain shaft oi elevator way situate on said, premises, from the negligent or improper construction, management and operation of said elevate] thereat, by defendants, and which was affixed to and a part of saie premises, and under the control of defendants, and propelled by steam power furnished by the defendants * * , * and the fail ure of defendants to furnish adequate light thereat.”
    The bill of particulars was moved for, after issue joined, tc enable the defendants to prepare for trial.
    
      Samuel W. Weiss, for appl’ts ; Harvey W'eed, for resp’t.
   Truax, J.

Counsel for plaintiff in his brief on this appeal stated that the plaintiff alleged tlie negligent act of the defendants that caused the death of the plaintiff’s intestate, was the “ shutting down the dock over a certain shaft or elevator way.” This statement by counsel is not correct The complaint does not contain such an allegation, but it adds to it the allegation “ and the negligent and improper construction, management and operation of said elevator thereat by defendants.” The allegation that plaintiff’s intestate was killed by reason of the negligent and imperfect construction, management and operation of the elevator, is not particular enough. In what respect was the elevator negligently and improperly constructed ? In what respect was it negligently and improperly managed and operated? Or, rather, in what respects does plaintiff expect to prove that the elevator was négligently and improperly constructed, managed and operated, is a question that plaintiff should answer before defendants are brought to trial. Lahey v. Kortright, 55 Supr. Ct., 156; 12 N. Y. State Rep., 71.

If plaintiff cannot show in what respects she expects to prove that .defendants were negligent, she cannot recover in this action. The mere happening of the accident does not place upon the defendants the burden of showing that it did not happen 'through their negligence. /

Order reversed, with costs, and plaintiff ordered to furnish within ten days from the service of a copy of this order a bill of particulars showing in what respect the elevator mentioned in the mmplaint was negligently or improperly constructed, managed or Dperated, with ten dollars costs to the defendant to abide the event of this action.

Freedman, J., concurs.  