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Agnew v. Brooklyn City Railroad Co., 20 Abb. N. C., 235.

AGNEW v. BROOKLYN CITY RAILROAD CO.

Brooklyn City Court, General Term, 1887.

[Reported in 20 Abb. N. C., 235, with note.]

An allegation that defendants' servant, driving their horse-car at a time and place specified, so negligently and carelessly managed his team that the horse knocked her down and injured her leg, is sufficiently definite and certain. To state more information would be to plead evidence.

Appeal from an order.

BY THE COURT-VAN WYCK, J. This is an appeal from an order denying a motion to have the complaint made more definite and certain.

The plaintiff, a child of five years, alleges that while she was in the act of crossing Sackett Street, on the cross-walk, the driver of a one-horse street car so negligently and carelessly managed his team, that the horse knocked her down, and injured her leg.

This is certainly a plain and concise statement of the facts constituting her cause of action, as required by Code Civil Pro., § 481. The defendant insists that under section 546 the Court should compel her to state what act of commission or omission of the driver was negligent. The meaning and application of the allegation are definite and certain; it distinctly states negligence in the management and control of the team, viz.: That the driver brought his horse in contact with this plaintiff when, by the exercise of ordinary care, he could have prevented it. 3 Plaintiff could not furnish in her pleadings more information in relation to the fact thus set forth, unless she pleaded the evidence by which she expects to prove this fact. This is never desirable; the form of this complaint is to be commended.

If the defendants make out a case in which they are entitled to the evidence, or parts of it, they ought to appeal to the provisions of the Code allowing the examination of a party before trial, or compelling the party to furnish a bill of particulars [§§ 531, 870].

We see no reason for disturbing the discretion of the court

Donner v. Ogilvie, 49 Hun, 229.

below exercised in denying the motion of defendant. (Reardon 4 v. N. Y. C. Co., 50 N. Y. Supr. Ct. [J. & S.], 514.)

The order should be affirmed, with $10 costs and disbursements.

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DONNER v. OGILVIE.

New York Supreme Court, First Department, June, 1888.

[Reported in 49 Hun, 229.]

A complaint to charge the lessor of rooms in a tenement house with damages by reason of an injury sustained by a member of the family of the hirer, from the unfit condition of the premises for the use for which it was let, is not sufficient, unless it alleges either that defendants knew or had reason to know the dangerous condition and failed to disclose it, or that they had agreed to repair it and did not, or facts showing that the dangerous structure was such as to be a nuisance, or that it was in a part of the building of which the lessor retained care and control, to be used for the benefit of the tenants generally.

Action for negligence.

The amended complaint was as follows:

ESTHER DONNER, by her Guardian ad

litem, Alexander Cauldwell

against

CLINTON OGILVIE and Ida M. Ingersoll, Trial desired in the county

individually and as executor and executrix of the last will and testament of William H. Ogilvie, deceased, Benjamin F. Hahn and Henry Schumacher.

of New York.

The plaintiff as and for an amended complaint herein alleges upon information and belief, as follows:

I. That heretofore and prior to the times hereinafter mentioned, William H. Ogilvie died seized of the premises here

Donner v. Ogilvie, 49 Hun, 229.

3 inafter mentioned, leaving a last will and testament, which was duly recorded in the office of the Surrogate of the county of New York, on the 3d day of November, 1882, in and by which said last will and testament, the defendants, Clinton Ogilvie and Ida M. Ingersoll, were nominated and appointed as executor and executrix of said will.

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II. That the said defendants, Ogilvie and Ingersoll, were the children of said testator, and his next of kin and heirs-at-law. III. That in and by said will of said testator the premises hereinafter mentioned were devised by said testator to the said defendants, Ogilvie and Ingersoll.

IV. That on the 3d day of January, 1883, letters testamentary were duly issued by said Surrogate of the county of New York to the defendants, Clinton Ogilvie and Ida M. Ingersoll, as executor and executrix of said last will and testament of William H. Ogilvie, deceased, who respectively duly qualified as such and entered upon the discharge of their duties as such, and continue so to act, and as such, assumed possession and control of the property and assets of the said testator.

V. That among other property and assets left by the said testator were the premises known as No. 94 Sheriff street, in the city of New York, consisting of a rear tenement house occupied at the times herein mentioned by a number of tenants, of which said executor and executrix assumed control.

VI. That thereafter and prior to the 22d day of April, 1887, the said defendants, Ogilvie and Ingersoll, leased the said premises to the defendants, Benjamin F. Hahn and Henry Schumacher, for a term of years.

VII. That while the said premises were in the possession of the defendants certain of the rooms thereof were let and rented to Charles Donner, the father of this plaintiff, from month to month, at an agreed compensation or rental, without any covenant on the part of the said Charles Donner to repair said premises.

VIII. That under said letting and hiring at the times hereinafter mentioned the said rooms were occupied by the parents of the plaintiff, with whom this plaintiff, an infant, under the age of fourteen years, was residing.

Donner v. Ogilvie, 49 Hun, 229.

IX. That immediately in front of the rooms so occupied by 7 this plaintiff and her parents, as aforesaid, there was a platform about fourteen feet, more or less, above the ground or yard necessary to be used for ingress and egress to and from the said rooms, and intended for use in connection with said rooms.

X. That at the time of the leasing of the said premises by the defendants, Ogilvie and Ingersoll, to the said defendants, Hahn and Schumacher, the said platform was in the same state and condition as at the time of the accident herein mentioned.

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XI. That the said defendants, in violation and disregard of g their duty and of the rights of this plaintiff, wrongfully and negligently failed to properly guard or protect the said platform, and permitted the same to become and remain in an improper, unsafe and dangerous condition; so that this plaintiff, on the 22d day of April, 1887, while in the proper and lawful use of the said rooms and platform, without any fault or contributory negligence on her part or that of her parents, fell from said platform into the yard below, solely because of the negligence of the defendants and the improper, insufficient and negligent manner in which the said platform was constructed, guarded and kept, and its unsafe, improper and dangerous condition.

XII. That by reason of the premises this plaintiff sustained severe and, as she is advised and believes, permanent injuries, and became and remained sick for a long period of time, and greatly suffered in body and mind to her damage in the sum of $15,000.

XIII. That this plaintiff is an infant under the age of fourteen years, and by order duly made by this court and entered on the 28th day of May, 1887, before the commencement of this 10 action, Alexander Cauldwell was duly appointed guardian ad litem of the plaintiff, to commence and prosecute this action.

Wherefore, plaintiff demands judgment against the defendants for the sum of $15,000, with interest thereon, from the 22d day of April, 1887, besides the costs and disbursements of this action. [Signature and address of] Plaintiff's attorney.

The defendants, Ogilvie and Ingersoll, demurred on the ground

Donner v. Ogilvie, 49 Hun, 229.

11 that the complaint did not state facts sufficient to constitute a cause of action.

The Supreme Court at Special Term overruled the demurrer and defendants' appeal.

The Supreme Court at General Term reversed the judgment. BARTLETT, J. The contents of the amended complaint in this action may be summarized as follows: The defendants, Ogilvie and Ingersoll, owned and controlled the premises 94 Sheriff 12 street, in the city of New York, which consisted of a rear tenement house occupied by a number of tenants. Prior to April 22, 1887, they leased these premises to the defendants, Hahn and Schumacher, for a term of years. While the premises were in the possession of the defendants (no particular defendants being specified) certain rooms therein were let and rented to the plaintiff's father from month to month at an agreed rent, without any covenant by the tenant to repair. The rooms were occupied by the parents of the plaintiff, with whom she, being an infant under fourteen years of age, resided. Immediately in front of the 13 rooms was a platform about fourteen feet above the yard, and necessary to be used for ingress and egress to and from the rooms, and intended for use in connection with the rooms. When leased by the defendants Ogilvie and Ingersoll to the defendants, Hahn and Schumacher, the platform was in the same condition as at the time of the accident, which is the subject-matter of the action. The defendants negligently failed to properly guard and protect the platform, and permitted it to become and remain in an improper, unsafe and dangerous condition, so that the plaintiff, on April 22, 1887, while in the proper and lawful use of the 14 rooms and platform, without contributory negligence, fell from the platform into the yard below, solely because of the negligence of the defendants, and the improper, unsafe and negligent manner in which the said platform was constructed, guarded and kept, and its unsafe, improper and dangerous condition. The plaintiff sustained severe and permanent injuries, to her damage $15,000.

This, I think, is a fair statement of the substance of the complaint. The defendants Ogilvie and Ingersoll have demurred on