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Appeal from Special Term, Kings County.

Action by Bronislawa Wojtczak, an infant, by Ladislaus Lorck, her guardian ad litem, against the American Manufacturing Company. From so much of a Special Term order as denied a part of defendant's motion for a bill of particulars, it appeals. Modified and affirmed.

Argued before JENKS, P. J., and BURR, THOMAS, WOOD-
WARD, and RICH, JJ.

Thomas F. Magner, of Brooklyn, for appellant.
I. L. Broadwin, of New York City, for respondent.

RICH, J. This action is brought by a servant against the master to recover for personal injuries alleged to have been sustained through its negligence. The learned court at Special Term has granted defendant's motion for a bill of particulars regarding some matters alleged in the complaint, but denied the following, among others:

(1) "In what respects was the use, management, control, and operation of the machine at which she was employed, dangerous ?"

(2) “What instruction was required in the use, management, control, and operation of said machine, in order that the same might be used and controlled with safety?"

Negligence is alleged in both of these particulars, but, as was said in Higgins v. Erie Railroad Co., 140 App. Div. 222, 124 N. Y. Supp. 1082 “in such a general way as to make it practically impossible to determine what issues are to be met, and it is no answer to defendant's demand for a bill of particulars that defendant is in a position to know the facts. The question to be determined is what the plaintiff claims are the facts; that is the issue to be tried, and the defendant has a right to be informed of the issues by the pleadings, a bill of particulars being a part of such pleadings."

We are of the opinion that this rule requires a compliance with defendant's demands as quoted above, and the order is modified, by including within its requirements the two particulars, and, as so modified, affirmed, without costs to either party.

THOMAS and WOODWARD, JJ., concur. JENKS, P. J., and BURR, J., dissent as to the second requirement.

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(152 App. Div. 493.)

WATTS V. HEWLETT BAY CO. et al. (Supreme Court, Appellate Division, Second Department. September 10, 1912.) DAMAGES (8 113*) --MEASURE OF DAMAGES—INJURY TO OYSTER BED.

In an action for injuries to plaintiff's oyster bed by defendant's dredg. ing operations, the measure of plaintiff's damages, aside from the value of the oysters in existence and which were actually destroyed, was the amount the usable value of the premises had been diminished by defend

ant's acts, or the sum a reasonable man would be willing to pay for the •For other cases see same topic & S NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

opportunity of making use of the property in its normal state while its use was unlawfully withheld from plaintiff.

[Ed. Note.-For other cases, see Damages, Cent. Dig. 88 279, 280; Dec. Dig. 8 113.*] Appeal from Special Term, Nassau County.

Action by William J. Watts against the Hewlett Bay Company and another. From a judgment for plaintiff for $445.23, defendants appeal. Reversed, and new trial granted.

See, also, 146 App. Div. 913, 131 N. Y. Supp. 1149.

Argued before JENKS, P. J., and THOMAS, CARR, WOODWARD, and RICH, JJ.

Alfred T. Davison, of Brooklyn, for appellants. George Wallace, of Jamaica, for respondent. WOODWARD, J. The plaintiff was the licensee of the town of Hempstead, in possession of an oyster bed at Ned's Hole Bar, and the defendants are alleged to have destroyed the oysters upon this bed, estimated at 150 bushels, and to have prevented the plaintiff from realizing his profits upon the year's business, by reason of certain dredging operations. The learned court at Special Term has given judgment in favor of the plaintiff, allowing the full amount of the claim for the oysters alleged to have been destroyed, and $139.65 for the loss of profits, which it was held the plaintiff would have realized from the bed if he had planted his oysters in June (as the evidence indicated he might have done, in the exercise of reasonable judgment in reducing the losses), instead of permitting the season to go by entirely.

The court arrived at this conclusion by finding as a matter of fact that it was "the usual custom or practice of the plaintiff to plant 500 bushels of seed on this bed in the month of April of each year, and he was prevented from planting that quantity in the month of April, 1910, by the mud and sand being on his bed as heretofore described; that the same could have been planted in June of that year;" that the season of 1910 was a good one in that part of Hempstead Bay for the growing of oysters, and that the 500 bushels planted on plaintiff's bed in April would have increased to a quantity fairly estimated at 900 bushels, and if planted in June would have increased proportionately; that the impairment of the plaintiff's bed, the loss of oysters thereon, and the loss of his business for the season of 1910 were natural results of and were caused by the united acts of both defendants in relation to such dredging; that the value of 150 bushels of oysters then on the beds, less the cost of taking them up and marketing at the docks, was $150; that the value of 900 bushels of oysters, during the present season, delivered at the dock, at $1.25 per bushel, would be $1,125; that the cost of the seed delivered at the bed was 68 cents per bushel, with $8 added for spreading the same, which would for 500 bushels of seed amount to $348; that the cost of taking up and marketing 900 bushels at 20 cents per bushel would amount to $180, making a total cost of *For other cases see same topic & & NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

137 N.Y.S.--19

$528; that by deducting this from $1,125, the market value of 900 bushels at the dock, the damage to the plaintiff from the loss of the season's business in 1910 is found to be $597; but that plaintiff, by planting said lot in June, would have reduced his loss to $139.65.

It seems clear from these findings that the learned court at Special Term has attempted to compensate the plaintiff for his loss of profits upon what is practically a growing crop, in the same sense that onions grown from settings would be a growing crop, and this is not the proper measure of damages in cases of this character. All of the facts which were before the court, and which entered into the calculation as above set forth, were properly in the case as a foundation for the judgment; but the measure of damages is not the loss of profits which may be arrived at by mere speculation upon what would be the result of the planting. These facts are properly in the case for determining how has the fee, rental, or usable value of the premises been diminished by the acts of which complaint is made. Reisert v. City of New York, 174 N. Y. 196, 207, 66 N. E. 731, and authorities there cited. In other words, the measure of damages in a case of this character, aside from the oysters which were in existence and which were actually destroyed, is the usable value of the premises—is what, knowing its capacity for production and the conditions under which that production might be expected, a reasonable and prudent man would be willing to pay for the opportunity of making use of the property in its normal state, during the period of time that it is unlawfully withheld from the owner. This, we believe, is the ru laid down in the eisert Case, supra, and the one which is controlling here.

The judgment appealed from should be reversed, and a new trial granted; costs to abide the final award of costs. All concur.

(152 App. Div. 483.)

SMITH V. AMERICAN ICE CO.

(Supreme Court, Appellate Division, Second Department. September 10, 1912.) 1. MASTER AND SERVANT (8 289*)--ACTION FOR INJURIES-QUESTION FOB JUBY

-CONTRIBUTORY NEGLIGENCE.

In an action for the death of the conductor of a street car, killed by being crushed between the car and an ice wagon standing behind it, evidence held sufficient to go to the jury on the question of deceased's contributory negligence.

{Ed. Note.-For other cases, see Master and Servant, Cent. Dig. $$

1089--1132; Dec. Dig. 8 289.*] 2. MASTER AND SERVANT (8 278*)-ACTION FOR INJURIES—WEIGHT OF Evi

DENCE-NEGLIGENCE OF MASTER.

Evidence in an action against a street railroad for the death of a street car conductor, killed by being crushed between the car and an ice wagon standing behind it, held not to establish negligence on the part of the defendant.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. $$ 954 972, 977; Dec. Dig. $ 278.*]

*For other cases see same topic & $ NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

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Appeal from Special Term, Kings County.

Action by Michael J. Smith, as administrator of Peter Skelly, deceased, against the American Ice Company and the Brooklyn Heights Railroad Company. From an order of the Supreme Court, entered in the office of the clerk of the county of Kings, setting aside a verdict in his favor and against the defendant the Brooklyn Heights Railroad Company, plaintiff appeals. Affirmed.

Argued before JENKS, P. J., and HIRSCHBERG, THOMAS, CARR, and WOODWARD, JJ.

Martin T. Manton, of Brooklyn (Burt L. Rich, of Brooklyn, on the brief), for appellant.

D. A. Marsh, of Brooklyn, for respondent.

WOODWARD, J. This action, originally brought against the American Ice Company and the Brooklyn Heights Railroad Company, was dismissed as to the Ice Company, and, as there is no appeal from the order of dismissal, the case is to be treated as though there was only the defendant Brooklyn Heights Railroad Company involved. The action is to recover damages for personal injuries, resulting in death, alleged to be due to the negligence of the defendant in the operation, through its motorman, of a freight car. The evidence was submitted to the jury, resulting in a verdict for $5,500, and on motion of the defendant this verdict was set aside. The learned court handed down a memorandum in connection with the order from which this appeal is taken, in which it is said:

"The court erred in denying the motion to dismiss the complaint. A careful reading of the minutes reveals no evidence from which the jury should be permitted to find the plaintiff's intestate free from negligence contributing to the injury or the defendant negligent."

[1] We are unable to agree with this view of the case, though inclined to the opinion that the court might properly set aside the verdict as being against the weight of evidence. The evidence is to the effect that the defendant's motorman was operating a freight car upon Second avenue, in the borough of Brooklyn, on the 29th day of August, 1908; plaintiff's intestate being employed at the same time as conductor on said car. There is a switch at FiftySecond street, and at this point the forward trucks ran straight ahead on the main track, while the rear trucks went in on the switch, so that the rear end of the car was thrown around at a considerable angle with the track on which it had been proceeding. This position of the car operated to throw the trolley from the power wire, and plaintiff's intestate got out in the street, with the trolley rope in his hand, and, while standing at the rear right-hand corner of the car, undertook to adjust the trolley pole to the power wire. This necessarily took his vision away from the street and centered it on the wire overhead. While this work was going on, an ice wagon came up Fifty-Second street, intending to cross Second avenus. The car was standing still, and the driver of the ice wagon drew his team around from the direct line, going to the rear of the car, and then swinging around to the right-hand side of the car, for the purpose of continuing along Second avenue, describing a semicircle around from the left to the right hand side of the car. Just as his team had crossed the main track, and while the rear wheels were about upon the track, the car was started and backed up in such a manner that plaintiff's intestate was caught with a swinging movement between the rear platform of the car and the hub of the wheel of the ice wagon, and crushed so that he subsequently died.

There is some evidence in the case from which the jury might draw the inference that the car was started without any warning to the plaintiff's intestate, and at a time when his attention was centered upon the wire above his head, and, as trolley cars do not start, as a rule, without some affirmative action, or the neglect of proper precautions, there is ground for holding, under the provisions of section 42a of the Railroad Law, as added by Laws 1906, c. 657 (Gorman v. Brooklyn, Queens County & S. R. R. Co., 147 App. Div. 21, 23, 131 N. Y. Supp. 686), that the defendant was guilty of negligence in the operation of the car, and the inference might be drawn that the plaintiff's intestate, in the discharge of his duties, was not bound to anticipate that this car would be started without his signal, or at least without some warning, and that he was in the exercise of reasonable care in the work which he was performing. The case cannot be distinguished on this point from that of Gorman v. Brooklyn, Queens County & S. R. R. Co., supra, and, if the evidence was clear upon this point, we should have no doubt that the order appealed from should be reversed.

The fairer inference from the evidence, however, is that plaintiff's intestate got down from the car for the purpose of adjusting the trolley pole, and that he was standing at the side of the car, near the rear, and that it was his intention, and that of the motorman, that the car should be started back as soon as the trolley connection was made, and that the plaintiff's intestate, after the car was in motion, walked backward with his eyes turned upward to the wire, without noticing that the wagon had been driven into a position dangerous to himself. One of the plaintiff's witnesses, who says he saw the accident, testifies that:

"The car was standing still when we started around (with the wagon). I saw the conductor on the ground. He was standing about the center of the rear car getting the pole, and as soon as the pole touched the wire there was a backing up; there was no sound or bell, not a word said. He was looking toward the front of the car, walking backwards the same time the car was backing, looking towards the front. When the car started back, he was looking towards Thirty-Ninth street. He was standing about four feet away from the rear corner, the back corner of the car.

* I saw the car start back, and we was on the track, going towards the track. It started pretty quick. The conductor was standing, at the time it started, about four feet up, about four feet away from the car.

I saw this conductor near the center of the car, and he had the rope in his hand, and he was looking up and working with the rope, working backwards, and the next thing I knew was when I heard the yell."

Another witness testifies that:

“The conductor was on the side of the car at the rear end, right almost the extreme end, you may say, near the corner of the car-exactly. I would

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