
    (159 App. Div. 453.)
    GRIFFIN v. CUNARD S. S. CO., Limited.
    (Supreme Court, Appellate Division, First Department.
    December 5, 1913.)
    Pleading (§ 314)—Bill of Particulars—Right to Bill.
    In a personal injury action, where defendant pleaded contributory negligence and the negligence of a fellow servant, plaintiff is not entitled to a bill of particulars of the negligence relied on, for until he makes out his case defendant cannot properly limit his defense, as it will depend on plaintiff’s proof.
    [Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 952, 953; Dec. Dig. § 314.*]
    
      Appeal,from Special'Term, New York County.- •
    Action by Patrick Griffin against the Cunard Steamship Company, Limited. From an order granting plaintiff’s motion for a bill of particulars, defendant appeals.
    Reversed.
    ' Argued before INGRAHAM, P. J„ and CLARKE, SCOTT, DOW-LING, and HOTCHKISS, JJ.;
    Lord, Day & Lord, of New York City (Allan B. A. Bradley, of New York City, of counsel), for appellant.
    Almy, Van Gordon, Evans & Kelly, of New York City (William S. Evans, of New York City, of counsel), for respondent;
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1997 to date, & Bep’r Indexes
    
   CLARKE, J.

The complaint alleges that the plaintiff was in the employ of the defendant steamship company, and while under said employment was stationed on the hurricane deck of the steamship Saxonia at or near hatch No. 2 thereon; that he was struck by a draft containing several barrels of flour which was being raised from the pier upon said steamship, thereby throwing him from said hurricane deck and precipitating him down through said hatch and upon the olive [sic] deck of the said steamer, through the fault, carelessness, and negligence of the defendant, its agents, servants, and employés. The answer alleges for a first defense that the injuries complained of were caused in whole or in part by the contributory negligence of the plaintiff; and for a second defense, by the negligence of a competent fellow servant or fellow servants. The plaintiff moved for a bill of particulars specifying: First, the facts showing what acts the plaintiff committed and which constituted his contributory negligence; second, the facts showing the acts of negligence of the competent fellow servant or fellow servants, which contributed to the accident. And from the order granting said motion the defendant appeals.

Prior to the trial the defendant should not be compelled to state the particulars required and thus limit and define its possible defense. Plaintiff knows what he did and is required to prove his cause of action. Until he and his witnesses disclose the facts, it would be extremely difficult, if not impossible, for the defendant company to comply with this order. It should not be thus improperly hampered. Upon considerations of sound public policy we have not allowed general examinations before trial in negligence cases. Wood v. Hoffman, 121 App. Div. 636, 106 N. Y. Supp. 308. It seems apparent that, if an order should require the defendant to give the particulars of the claimed contributory negligence, the court must be prepared to-grant an application for an order for plaintiff’s examination before trial to enable defendant to comply with the order for particulars. We.are unwilling to embark on this course of procedure. The defense of contributory negligence in its very nature precludes the" necessity -for particularization. In our opinion this discretionary order should.hot have been granted. .

The order appealed from should be reversed, with $10 costs and disbursements,;.-and the motion denied,, with $10 costs. All concur.  