#### Ithaca Trust Company, as Executor, etc., of William E. Marion, Deceased, Respondent, *v.*Driscoll Brothers & Company, Appellant.

Third Department,

July 1, 1914.

Pleading — bill of particulars — contributory negligence alleged as affirmative defense.

As section 203a of the Labor Law makes contributory negligence an affirmative defense to be pleaded and proved by the defendant, the court in its discretion may require the defendant to give a bill of particulars as to an allegation of contributory negligence contained in the answer.

Smith, P. J., dissented.

*55Appeal by the defendant, Driscoll Brothers & Company, from an order of the Supreme Court, made at the Tompkins Trial and Special Term and entered in the office of the clerk of the county of Tompkins on the 31st day of March, 1914, requiring the defendant to furnish plaintiff with a bill of particulars.

*Cobb,*Cobb, *McAllister & Feinberg [Peter F. McAllister*of counsel], for the appellant.

*E. H. Bostwick,*for the respondent.

Kellogg, J.:

Section 202a, added to the Labor Law by chapter 352 of the Laws of 1910, declares that contributory negligence of the injured employee is a defense to be so pleaded and proved by the defendant. The answer alleges that the plaintiff’s loss and damage was caused solely by reason of the negligence and carelessness of its intestate. The order appealed from requires the defendant to give a bill of particulars of the alleged acts of the plaintiff’s testator which caused the injury. The accident resulted in death, and the acts of the decedent and the acts causing the injury must be shown by others. Presumably knowledge as to the facts rests more with the defendant than with the plaintiff, and proof of the facts to a great extent must come from the defendant’s officers and servants. The court, therefore, properly exercised its discretion in directing the bill of particulars.

The new provision in the Labor Law was intended to remedy defects in the practice theretofore existing, and the defendant is now required to allege and prove contributory negligence. The section is not to be construed to death but is to be given a fair and reasonable interpretation to carry out the beneficent purposes intended. Ordinarily a defendant must state the facts constituting the defense, and there is no good reason why contributory negligence should be treated differently than any other defense. It must, however, be left to the wise discretion of the judge granting the order to see that it is not used as an instrument of oppression or wrong. A mere allegation in a complaint that the plaintiff was injured hy defendant’s negligence ordinarily would not survive a motion to require a state*56ment of the facts and circumstances constituting the alleged negligence. When contributory negligence is now alleged as an affirmative defense it is difficult to see why the defendant should not state the facts in an issuable form and not mere conclusions. The requirement that the defendant must allege contributory negligence must *be read in connection with section 500 of the Code of Civil Procedure, which prescribes what the answer shall contain. It may be a denial, as mentioned in the 1st subdivision of the section, or, as permitted by the 2d subdivision, *“*a statement of any new matter constituting a defense or counterclaim, in "ordinary and concise language, without repetition. ” New matter is stated by alleging facts and not a mere conclusion of fact. It is urged that the defendant may not know what the acts of contributory negligence are until the plaintiff’s case is developed, but ordinarily a defendant knows the condition of his works and plant, and if an injury occurs such knowledge gives some information at least as to" how the accident probably occurred. Where the injured person is dead, and the injury occurred upon the defendant’s works, the plaintiff may well be surprised by the testimony of employees or officers of the defendant, and should properly be informed of the acts which are alleged to constitute the contributory negligence. We are not saying that in every case a bill of particulars must be furnished; it is sufficient to hold that in this case the discretion of the trial court was properly exercised.

The power of the court under this section has been sustained in *Havholm*v. *Whale Creek Iron Works*(159 App. Div. 518). A bill of particulars was denied in *Griffin*v. *Cunard, Steamship Co., Ltd.*(159 App. Div. 453). These cases indicate that the power rests with the Special Term, and is a matter of sound discretion. The order was properly granted, and should be affirmed, with costs.

All concurred, except Smith, P. J., dissenting.

Order affirmed, with costs.