Opinion
May 16, 1960
Appeal from the Erie Special Term.
Present — Williams, P.J., Goldman, Halpern, McClusky and Henry, JJ.
Order unanimously reversed, without costs of this appeal to either party, and motion granted in accordance with the memorandum, without costs. Memorandum: In answer to a demand by defendant Phoenix Brewery Corporation for a bill of particulars setting forth "The specific acts or omissions constituting * * * negligence", the plaintiff served a bill of particulars stating that such facts and omissions were fully set forth in paragraphs 6, 10 and 12 of the complaint. Phoenix moved for a further bill of particulars and to strike from the one furnished certain general allegations of negligence on the ground that they were vague, indefinite and not specific. The motion was denied at Special Term. The order appealed from must be reversed and the motion granted to the extent of striking from such bill of particulars all reference to paragraphs 6 and 10 of the complaint and by striking therefrom the following language adopted by cross reference to paragraph 12 of the complaint: "and otherwise conducting its bottling, capping, sealing, packaging, distribution and sale of said beer in a careless and negligent manner"; and also "The Phoenix Brewery Corporation was otherwise careless and negligent herein". If, hereafter, the plaintiff shall discover new or additional facts upon which he may desire to base further claims of negligence, a motion may be made for permission to serve an amended and supplemental bill of particulars.