
    Charles H. Loeber, Resp’t, v. Isaiah L. Roberts, App’lt.
    
      (New York Superior Court, General Term
    
      Filed May 5, 1890.)
    
    Bill of particulars — Negligence.
    In an action for negligently setting fire to plaintiff’s house, when the answer alleges that the fire was caused by volatile and dangerous materials kept on the premises by plaintiff, and (that his negligent keeping of them contributed to the loss, Held, that plaintiff was not entitled to a bill of particulars as to the manner wherein the materials were negligently used or exposed by him so as to cause the fire, and defendant can only be required to specify the materials referred to, or if unable to do so, to give the reason therefor, and give a description thereof as nearly as possible.
    Appeal by defendant from order requiring him to serve a bill of particulars.
    Action for negligently setting fire to plaintiff’s house. The answer denied generally, and alleged that the fire was caused by volatile, inflammable and dangerous materials kept by plaintiff on the premises, and that his negligent keeping and use of the same contributed to the loss. The order in question required a bill of particulars, specifying what volatile, inflammable or dangerous materials were used by plaintiff, and by their inflammable character took fire; wherein such materials were negligently and carelessly used or exposed by plaintiff so as to cause said fire, and what dangerous, volatile, inflammable or highly combustible material likely to ignite at a low temperature, or to undergo chemical decomposition, and to generate reaction, whereby combustion might ensue, were carelessly kept and exposed in plaintiff’s room.
    
      A. S. Cushman, for app’lt; William C. Beecher, for resp’t
   Per Curiam.

It seems to be at the least doubtful, that defendant could not maintain his defense on the trial although he should fail to prove the specific names of the materials which he is called upon to specify by the order granted below. It would promote the just investigation of the case not to call upon the defendant now and finally to specify “ what highly volatile, inflammable or dangerous materials were used by plaintiff and by their inflammable character took fire and what dangerous, volatile, inflammable or highly combustible material likely to ignite at a low temperature or to undergo chemical decomposition and to generate reaction whereby combustion might ensue, were carelessly kept and exposed in plaintiff’s room.”

The part of the order described should be. modified so as to require the defendant to furnish a verified bill of particulars, specifying the materials referred to, of in case he states in the bill that he is not able to specify them or any of them, to give a sufficient reason why he is not able to be more specific, and further to give the description of such material as fully as he is able to.

The second requirement of the order should be omitted. It is “ Wherein said materials were negligently and carelessly used or •exposed by said plaintiff, so as to cause said fire.” This involves the defendant being confined in his evidence in a matter that is now as much within the knowledge of the plaintiff as of the defendant, and is not a case where it is necessary for the plaintiff to know what he will be called upon to meet He was bound to take ordinary care, as to the materials he had in his rooms. He knows what kind of care in fact, should have been taken of them. The defendant by his answer proposes to prove that he did not take the proper care.

The order modified, as has been indicated, should be affirmed, without costs.

Sedgwick, Ch. J., Tbit ax and Dugro, JJ., concur.  