
    Bronislawa Wojtczak, an Infant, by Ladislaus Lorck, Her Guardian ad Litem, Respondent, v. American Manufacturing Company, Appellant.
    Second Department,
    September 10, 1912.
    Pleading— bill of particulars—indefinite charges of negligence.
    Where the complaint of a servant suing her master to recover for personal injuries charges negligence, in that the machine upon which she was employed was dangerous and in that instruction in the use thereof had not been given, in such a general way as to make it impossible to determine what issues are to be raised, the plaintiff should be required to ■give a bill of particulars of the said items of negligence.
    Jenks, P. J., and Burr, J., dissented in part.
    Appeal by the defendant, the American Manufacturing Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Queens on the 29 th day of March, 1912, denying the defendant’s motion for a bill of particulars.
    
      Thomas F. Magner, for the appellant.
    
      I. L. Broadwin, for the respondent.
   Rich, J.:

This action is brought by a servant against the master to recover for personal injuries alleged to have been sustained through its negligence. The learned court at Special Term has granted defendant’s motion for a bill of particulars regarding some matters alleged in the complaint, but denied the following, among others: (1) “In what respects was the use, management, control and operation of the machine at which she was employed, dangerous?” (2) “What instruction was required in the use, management, control and operation of said machine, in order that the same might be used and controlled with safety ? ” Negligence is alleged in both of these particulars, but, as was said in Higgins v. Erie Railroad Co. (140 App. Div. 222), “in such a general way as to make,it practically impossible to determine what issues are to be met, and it is no answer to defendant’s demand for a bill of particulars that defendant is in a position to know the facts. The question to be determined is what the plaintiff claims are the facts; that is the issue to be tried, and the defendant has a right to be informed of the issues by the pleadings, a bill of particulars being a part of such pleadings.”

We are of the opinion that this rule requires a compliance with defendant’s demands as quoted above, and the order is modified by including within its requirements the two particulars, and as so modified affirmed, without costs to either party.

Thomas and Woodward, JJ., concurred; Jerks, P. J., and Burr, J., dissented as to the second requirement.

Order modified in accordance with opinion, and as modified affirmed, without costs.  