Larrere v. Morse , 159 N.Y.S. 74 ( 1916 )

BIJUR, J.

The learned court below denied the motion as to these particulars on the ground that they were “apparently, at least, if not more, within the knowledge of the defendant than the plaintiff.” It is well settled in this department that, as the particulars authorized to be required are of the party’s claim, knowledge on the part of the other party of alleged facts is quite immaterial. Dwyer v. Slattery, 118 App. Div. 345, 103 N. Y. Supp. 433; Waller v. Degnon Contr. Co., 120 App. Div. 389, 105 N. Y. Supp. 203; Bjork v. Post & McCord, 125 App. Div. 813, 110 N. Y. Supp. 206.

The two cases cited as sustaining the contrary rule, namely, Griffin v. Cunard S. S. Co., Ltd., 159 App. Div. 454, 144 N. Y. Supp. 517, and Fernet v. Stewart Co., 163 App. Div. 112, 117, 148 N. Y. Supp. 646, relate to demands for a bill of particulars by a defendant as to plaintiff’s alleged contributory negligence, which manifestly stands on an entirely different footing, and is governed, as the opinions show, by entirely different considerations.

Order reversed, with $10 costs and disbursements, and motion granted as to said particulars. All concur.