#### Peter Leo Havholm, Respondent, *v.*Whale Creek Iron Works, Appellant.

Second Department,

December 5, 1913.

Pleading — action against master under Labor Law — bill of particulars — affirmative defenses of contributory negligence and assumption of risk.

Where in an action under the Labor Law brought by a servant against ■his master to recover for personal injuries alleged to have been caused by negligence, the defendant, after denying the material allegations of *579the complaint, charges that the plaintiff was guilty of contributory negligence and assumed the risks incident to his employment, the court, in its discretion, may require the defendant to give a bill of particulars of the affirmative defenses aforesaid.

Since the enactment of section *2*of chapter 352 of the Laws of 1910, the burden of proving that a servant was guilty of contributory negligence is placed upon the master; that is to say, it is an affirmative defense.

Appeal by the defendant, Whale Creek Iron Works, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Queens on the 4th day of September, 1913, granting the plaintiff’s motion for a bill of particulars.

*Joab H. Banton,*for the appellant.

*Don R. Almy*[ *William S. Evans*and *Vernon C. Ryder*with him on the brief], for the respondent.

Stapleton, J.:

The action was brought under the Labor Law (Consol. Laws, chap. 31 [Laws of 1909, chap. 36], art. 14, as amd. by Laws of 1910, chap. 352). The casualty occurred on the 15th day of January, 1912. The complaint charged that “without any fault on his part, but solely through the fault, carelessness and negligence of the defendant ” (specifying acts constituting actionable negligence), plaintiff’s left hand and fingers were caused to be drawn on to and against a circular saw while he was engaged in the performance of his labors and that thereby he was injured.

The answer contained a denial of the material allegations of the complaint, and alleged:

> “For a further defense:

> “ *Third.*Defendant says that if the plaintiff was injured as set forth in the complaint, his injury was received through his own negligence contributing thereto and not through any fault or neglect of the defendant.

> “ For a further defense:

> “ *Fourth.*Defendant says that if the plaintiff was injured as set forth in the complaint, his injury was such as was incident to his employment and the risk thereof was assumed by him.”

*580The plaintiff moved at Special Term for a bill of particulars of the defenses of contributory negligence and assumption of risk, and from the order granting the motion the defendant appeals. The mandatory provisions of the order are:

> “ *Ordered,*that the motion of the plaintiff for a bill of particulars herein be, and the same hereby is, granted without costs, and it is further

> “ *Ordered,*that the defendant serve upon the attorney for the plaintiff, on or before the 10th day of September, 1913, a verified bill of particulars specifying in detail:

> “ I. A statement of the facts which constitute the acts of contributory negligence, of which the defendant claims plaintiff is guilty.

> “ II. A statement of the facts showing the risks inherent in the employment of the plaintiff and incident thereto as claimed by the defendant in paragraph marked ‘ Fourth ’ of the answer. ” The plain purpose of this appeal is to invite the judgment of this court upon the power of the court at Special Term to require a bill of particulars of the affirmative defense of contributory negligence, made so by section 202a of the Labor Law, added by section 2 of chapter 352 of the Laws of 1910, which reads as follows: “On the trial of any action brought by an employee or his personal representative to recover damages for negligence arising out of and in the course of such employment, contributory negligence of the injured employee shall be a defense to be so pleaded and proved by the defendant.”

Until the enactment of this section the burden of affirmatively pleading and proving his freedom from contributory negligence rested upon the plaintiff. With the enactment of the law the burden was shifted to the defendant. *(Dick*v. *Steel & Masonry Contracting Co.,*153 App. Div. 651, 655.) So recent has been the passing of the law cited that the question presented does not seem, until the present instance, to have reached the appellate courts. It has, however, more than once been the subject of determination at Special Term. In the New York Law Journal of August 14, 1913, is a memorandum in *Scanlon*v. *Henderson, Inc.*(Special Term, N. Y. county), wherein a motion for a bill of particulars was denied upon the ground that it called for evidence, and that it was not the office of a bill of *581particulars to expose to his adversary the evidence of the party giving it. On the other hand, in *Szymanski*v. *Contact Process Co.*(82 Misc. Rep. 46) the motion was granted on the ground that the court had power to make an order for a bill of particulars of an affirmative defense (citing *Dwight*v. *Germania Life Ins. Co.,*84 N. Y. 493, and *Spitz*v. *Heinze,*77 App. Div. 317).

In master and servant cases involving actionable negligence, the element of freedom from contributory negligence heretofore essential, as a matter of pleading and proof on the plaintiff’s, part to a plaintiff’s recovery upon the theory that one who was injured by his own negligence was regarded by the law as not having been injured at all so far as other parties were concerned, has been wholly eliminated as an essential to plaintiff’s case. Contributory negligence of the injured employee has thus become an affirmative defense. The power to require a bill of particulars in affirmative defenses has been asserted in a number of cases in which the causes of action have been diverse and the defenses various. (Code Civ. Proc. § 531; *Dwight*v. *Germania Life Ins. Co., supra; Witkowski*v. *Paramore,*93 N. Y. 467; *Kelsey*v. *Sargent,*100 id. 602; *Ball*v. *Evening Post Pub. Co.,*38 Hun, 11, 15; *Tallmadge*v. *Press Pub. Co.,*32 N. Y. St. Repr. 968; *Wynkoop, Hallenbeck, Crawford Co.*v. *Albany Evening Union Co.,*26 App. Div. 623; *Taylor*v. *Security Mutual Life Ins. Co.,*73 id. 319; *Spitz*v. *Heinze, supra; Burhans*v. *Hudson River Wood Pulp Mfg. Co.,*116 App. Div. 132; *Huber Brewery*v. *Sieke,*146 id. 467.)

Unless there is an essential difference between the special defense of contributory negligence of an injured employee and other special defenses, there is no reason why the particulars of the pleading thereof should not be required. We perceive nothing peculiar about that special defense except its novelty. We see no reason why one who alleges in a verified pleading a general charge of contributory negligence, should have any difficulty in particularizing. No greater burden is imposed upon the master in this respect than is imposed upon the employee with respect to the allegation of the master’s negligence. The Legislature must be deemed to have legislated in contemplation of the frequent exercise by the courts of the *582power to require bills of particulars of affirmative defenses. The courts should act in harmony with the purposes of this reparative legislation, and should not be astute to discover nice grounds for differentiation which would impair its force and weaken its effect.

The Special Term had the power to grant the order from which the appeal is taken. The power existing to grant or to withhold is in the discretion of the Special Term; and where there has been no abuse of the discretion, this branch of the court will not, as a rule, interfere. *(Knipe*v. *Brooklyn Daily Eagle, 101*App. Div. 43, 44; *Spencer*v. *Fort Orange Paper Co.,*74 id. 74; *Loewenthal*v. *Globe & Rutgers Ins. Co.,*132 id. 890.) We find no such abuse in the matter now before us. Indeed, we expressly approve of the determination.

The defendant contended that the facts sought to be elicited are peculiarly within the knowledge of the plaintiff, more so than within the knowledge of the defendant or any of its officers, and that, therefore, a bill of particulars would serve only to expose its evidence in advance of the trial. The contention may be met by the answer of authority. In *Dwyer*v. *Slattery*(118 App. Div. 345, 346) the court said: “The question in applications of this kind is not what may have been the actual facts, nor the knowledge of the opposite party concerning them, but rather what the aggrieved party claims them to be. What they are claimed to be is the issue that is to be met and tried, and where the pleading is not specific in this regard a bill of particulars is properly ordered to point out such claims and thus make definite the issues to be litigated. It is not the office of a bill of particulars to expose to his adversary the evidence of the party giving it. The purpose of such a bill is to amplify the pleadings and to indicate with more particularity than is ordinarily required in a formal plea the nature of the claim made in order that surprise upon the trial may be avoided and that the issues may be more intelligently met.” (See, also, *Waller*v. *Degnon Contracting Co.,*120 App. Div. 389, 390; *Bjork*v. *Post & McCord,*125 id. 813, 814; *Hoareau*v. *Schwartzkopf,*142 id. 69, 70.)

The defendant complains that the effect of the order is to deprive him of the benefit of evidence by which some act or *583omission establishing contributory negligence other than that specified in the bill of particulars could be proved. Such may be the result in every case in which specifications are required. The courts have ample power, on proper terms, to prevent injustice from the contingency, and the probability has been considered too remote to dispense with the bill which has proved so useful in the orderly administration of justice.

We do not gather from the brief that the appellant seriously complains of the provision of the order affecting the defense of assumption of risk. Did he so complain, however, the reasoning with regard to the other requirement would apply.

I advise affirmance of the order, with ten dollars costs and disbursements.

Jenks, P. J., Burr, Thomas and Putnam, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.