Imágenes de páginas
PDF
EPUB

First Department, May, 1908.

[Vol. 126 tiff's house and remedy the condition of the doors, windows and floors thereof therein described and to continue all of said work and to fully complete the same within ninety days after commencing

the same.

In subdivision "Eighth " of the judgment it is provided that in the event that the defendants do not commence and complete said work within the respective times within which they are directed to commence and complete it, plaintiff "recover from the defend

"the sum of $4,000. in addition to the sum of $374.90, her costs and disbursements, for which she is awarded judgment in sub'division "Seventh" of the judgment, and that she have execution against the defendants "accordingly." The last paragraph of the judgment gave defendants twenty days' stay of execution on the judgment. The judgment contains no express provision requiring a further application to the court by plaintiff showing default on the part of the defendants to render the judgment for the $4,000 effective or to authorize the issuance of execution thereon.

The motion was based upon proof by affidavit showing an attempt in good faith by defendants to comply with the judgment within the time required and that, as is manifest, part of the work can only be performed from plaintiff's premises and that she refused admission thereto on due demand for the purpose of complying with the judgment. It is unnecessary to decide whether the court has authority by order to compel plaintiff to suffer the defendants, their agents or servants to enter upon her premises to perform the work which the defendants by the judgment-presumably at the request of plaintiff - are directed to perform for complete protection to the defendants against the technical default, which plaintiff's conduct is calculated to produce, may be otherwise afforded. The point now presented was not involved in the decision. It arises on the enforcement of the decree and, therefore, the court has inherent power to protect the defendants either by adding an appropriate provision at the foot of the decree or by staying the operation of the judgment and the running of the time within which defendants are required to commence and complete the work until such time as plaintiff affords the defendants reasonable opportunity to perform the work. (Duclos v. Benner, 6 N. Y. Supp. 294; King v. Barnes, 51 Hun, 551; affd., 113 N. Y. 476; Rauth v. N. Y.

App. Div.]

First Department, May, 1908.

El. R. Co., 23 N. Y. Supp. 750; Clark v. Hall, 7 Paige, 382.) The decree should have expressly provided for the contingency which has arisen, but evidently it was not foreseen and the question now arising was not litigated. We are of opinion that it is not necessary to amend or add to the decree, although if necessary this might be done with respect to the time of complying therewith. (Adams v. Ash, 46 Hun, 105; Conklin v. N. Y. El. R. Co., 13 N. Y. Supp. 782.) We think that the appropriate order to afford protection to defendants is a stay of the operation of the 8th clause of the judgment and of the time prescribed for the judgment for $4,000 becoming effective and enforcible by execution and of the issue of execution thereon until plaintiff formally notifies defendants of her readiness to afford them access to her premises at all reasonable hours for the purpose of performing the work requiring such access for its performance and until ninety days after she remains ready and willing to afford them such access after such notice, and affords such access if they apply therefor after such notice from her.

It follows that the order should be reversed, with ten dollars costs and disbursements, and motion granted as herein indicated, with ten dollars costs.

INGRAHAM, CLARKE, HOUGHTON and Scorr, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted as indicated in opinion, with ten dollars costs. Settle order on notice.

JULIA GREENE, Respondent, v. ROBERT JOHNSON, Appellant.

First Department, May 8, 1908.

Pleading bill of particulars - personal injuries.

Where a complaint alleges that the plaintiff suffered an injury to her back and was otherwise injured, bruised and wounded and will for a long time be prevented from attending to her business and has expended large sums of money in endeavoring to be cured of her injuries, the defendant is entitled to a bill of particulars as to the nature and extent of the injuries, the amount expended for medicine, medical aid and nurses, attendance and the nature of her busiAPP. DIV.-VOL. CXXVI. 3

First Department, May, 1908.

[Vol. 126.

ness, but not as to the name of her employer and the names and addresses of her physicians, druggists and nurses.

The complaint being insufficient to warrant a recovery for permanent injuries, the plaintiff will not be compelled to state which of her injuries are permanent.

APPEAL by the defendant, Robert Johnson, from so much of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 28th day of February, 1908, as denies in part the defendant's motion for a bill of particulars.

Clifford Seasongood, for the appellant.

Charles T. Cowenhoven, Jr., for the respondent. LAUGHLIN, J.:

This is an action for personal injuries. The court granted the motion for a bill of particulars as to two items and denied it as to three others. Plaintiff alleges that she "suffered a fracture of three ribs and an injury to her back, and, was otherwise injured, bruised and wounded, so that she became sick, sore and disabled, and so remained, and has ever since been, and will for a long time to come, be prevented from attending to her business, and has expended and will continue to expend large sums of money in endeavoring to be cured of her said injuries, to her damage in the sum of $10,000."

The motion, in so far as it was denied, demanded a bill of particulars of (1) the nature, location and extent of each injury and whether claimed to be permanent; (2) the amount of any doctor's, druggist's and nurse's bill claimed and their names and addresses, and (3) the age of plaintiff, the nature of her business, the number of days she was unable to walk and the name and address of her employer.

The allegations of the complaint are insufficient to warrant a recovery for permanent injuries and it is, therefore, needless to require plaintiff to specify whether she claims that any of them are permanent. The allegation concerning the injury to her back is not specific, as the nature of the injury and the allegation that she "was otherwise injured, bruised and wounded" will, unless limited by a bill of particulars, admit proof of most any injury internal or external. The courts have in some instances declined to require bills of particulars of injuries not alleged to be permanent. (See

App. Div.]

First Department, May, 1908.

English v. Westchester Electric R. Co., 69 App. Div. 576; Ferris v. Brooklyn Heights R. R. Co., 116 id. 892.) This is doubtless upon the theory that ordinarily a party will be unable to define with precision the extent and duration of injuries not permanent and that the defendant should be left to his remedy by application for a physical examination. We are of opinion, however, that even as to injuries not permanent, where they are alleged in such general terms as here, the plaintiff should be required to give a bill of particulars thereof, so far as able, so that there may be some limitation to his proof as to injuries. It is alleged in the complaint that plaintiff has expended large sums of money in endeavoring to be cured which are included in the damages demanded. She should, therefore, specify how much, if any, she has expended for medicines and for medical aid and treatment and for the attendance of a nurse; but knowledge of the names and addresses of the physicians, druggists and nurses is not essential to apprise the defendant of plaintiff's claim for such expenditures. The defendant has been granted a bill of particulars as to plaintiff's loss of earnings or income, but not as to the nature of her business. She alleges that she has been unable ever since the accident to attend to her business and, therefore, no useful purpose will be served in requiring her to specify what that length of time is. Down to the commencement of the action it is a mere mathematical calculation. Her age and the name of her employer are not essential to enable defendant to properly defend the case. She should, however, be required to specify the nature of her business so that defendant may know whether she claims for loss of wages, salary or inability to carry on business for herself.

It follows, therefore, that the order, in so far as it is appealed from, should be modified, without costs, and motion granted, without costs, to the extent of requiring a bill of particulars of the nature, location and extent of the injuries, so far as now known, of the amounts expended or obligations incurred for medical aid, medicines and nurse hire and the nature of plaintiff's business.

INGRAHAM, CLARKE, HOUGHTON and SCOTT, JJ., concurred.

Order modified and motion granted, without costs, to the extent stated in opinion. Settle order on notice.

First Department, May, 1908.

[Vol. 126.

THE CITY OF NEW YORK, Appellant, v. NEW YORK CITY RAILWAY COMPANY, Respondent. (Car License C 4.)

First Department, May 15, 1908.

Railroad franchise construed - license fees — estoppel.

A grant of a street railroad franchise providing that the cars shall be licensed by the mayor and that the grantees shall pay an annual fee per car for such license requires the holder of the franchise to pay for each car run over the line, not merely for the greatest number in daily use during the year.

A claim that there was a practical construction of the contract by reason of the city's acceptance of license fees on the latter basis in former years is unfounded, since the city was not estopped by the act of its fiscal officer and, moreover, the contract is too plain for the application of the rule of practical construction.

Such grant is to be construed most favorably to the public.

APPEAL by the plaintiff, The City of New York, from a judg ment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 3d day of December, 1907, upon the verdict of a jury rendered by direction of the court after a trial at the New York Trial Term.

Terence Farley [Theodore Connoly and Frank B. Pierce with him on the brief], for the appellant.

Joseph P. Cotton, Jr. [Robert H. Neilson with him on the brief], for the respondent.

LAUGHLIN, J.:

This is an action to recover license fees for the cars run over that part of its line formerly owned and operated by the Ninth Avenue Railroad Company during the years 1902, 1903, 1904 and 1905.

It appears by the record that on the 20th day of December, 1852, the board of assistants of the city of New York, by resolution, granted to three individuals the right to construct railroad tracks in and along certain streets and to operate cars thereon for the conveyance of passengers for hire, upon certain conditions, and, among others, one as follows, to wit: "Provided that the said cars shall be licensed by the mayor, and the grantees shall pay the annual fee of

« AnteriorContinuar »