Melino v. Tougher Heating & Plumbing Co.

• Decision Date: 25 February 1965
• Citation: 256 N.Y.S.2d 885,23 A.D.2d 616
• Parties: Edith MELINO, as Administratrix, Plaintiff, v. TOUGHER HEATING & PLUMBING CO., Inc., et al., Defendants. TOUGHER HEATING & PLUMBING CO., Inc., et al., Defendants and Third-Party Plaintiffs-Appellants, v. SYRACUSE INDUSTRIAL SALES COMPANY, Third-Party Defendant-Respondent. SYRACUSE INDUSTRIAL SALES COMPANY, Third-Party Defendant and Fourth-Party Plaintiff, v. OMARK INDUSTRIES, Fourth-Party Defendant-Respondent. TOUGHER HEATING & PLUMBING CO., Inc., et al., Defendants and Third-Party Plaintiffs-Appellants, v. SYRACUSE INDUSTRIAL SALES COMPANY et al., Third-Party Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 885

256 N.Y.S.2d 885

23 A.D.2d 616

Edith MELINO, as Administratrix, Plaintiff, v. TOUGHER HEATING & PLUMBING CO., Inc., et al., Defendants.

TOUGHER HEATING & PLUMBING CO., Inc., et al., Defendants and Third-Party Plaintiffs-Appellants, v. SYRACUSE INDUSTRIAL SALES COMPANY, Third-Party Defendant-Respondent.

SYRACUSE INDUSTRIAL SALES COMPANY, Third-Party Defendant and Fourth-Party Plaintiff, v. OMARK INDUSTRIES, Fourth-Party Defendant-Respondent.

TOUGHER HEATING & PLUMBING CO., Inc., et al., Defendants and Third-Party Plaintiffs-Appellants, v. SYRACUSE INDUSTRIAL SALES COMPANY et al., Third-Party

Defendants-Respondents.

Supreme Court, Appellate Division, Third Department.

Feb. 25, 1965.

E. Stewart Jones, Troy, for plaintiff.

Donohue, Bohl, Clayton & Komar, Myron Komar, Albany, for defendants and third-party plaintiffs-appellants.

Borst, Smith, O'Loughlin Smith & Abbey, Peter G. Abbey, Schenectady, for third-party defendant-respondent.

Ainsworth, Sullivan, Tracy & Knauf, John E. Knauf, Albany, for fourth-party defendant-respondent.

Before GIBSON, P. J., and REYNOLDS, TAYLOR, AULISI and HAMM, JJ.

HAMM, Justice.

The appellant defendants and third-party plaintiffs appeal from orders entered in March and April of 1963 dismissing their third-party complaint and amended third-party complaint and dismissing also the fourth-party complaint of the third-party defendant, which they impleaded. The history and chronology of the motinos need not be detailed as the issues turn on the permissibility of a third-party complaint.

The allegations of negligence in the main complaint are confined exclusively to the following allegations:

'11. That the defendant, Donald Osterhoudt, so carelessly, recklessly and negligently operated the said industrial tool as to cause a metal bolt to be discharged into and through a wooden tool chest.

'12. That after penetrating the tool chest and passing through the said tool chest it struck a steel post about five feet from the point of discharge.

'13. That after striking the steel post, such bolt caromed or ricocheted off the steel post, striking the plaintiff's intestate in the lower right quadrant of the abdomen, penetrating it and causing, among other injuries, multiple lacerations of the small bowel and the great veins of the pelvis.

'14. That solely as a result of the negligence of the defendant, Donald Osterhoudt, in the operation of such industrial tool, the plaintiff's intestate was * * * injured * * *.

'15. That solely as a result of the negligence of the defendant, Donald Osterhoudt, the plaintiff's intestate also suffered severe mental and nervous shock.

'* * *

'25. That as a result of the carelessness and recklessness of the defendant, Donald Osterhoudt, as aforesaid * * * the plaintiff's intestate * * * died * * *.'

Where a defendant is alleged to be guilty only of active, as distinguished from passive negligence, impleader is improper as a matter of law since an actively negligent tort-feasor is not entitled to indemnity in the absence of an express contract to indemnify (Putvin v. Buffalo Elec. Co., 5 N.Y.2d 447, 186 N.Y.S.2d 15, 158 N.E.2d 691). It seems apparent that the plaintiff has not pleaded facts which can be interpreted as anything other than allegations that the defendants were actively negligent and no impleader is therefore permissible.

However, the appellants assert that the plaintiff's bill of part culars charges them with passive as well as active negligence. Whether the plaintiff's particulars are suspectible of such construction is immaterial, since adoption of the appellants' contention would not create an issue. The frequent statement that the function of a bill of particulars is to amplify the pleading refers to amplification by particularization of the allegations of ultimate fact; it does not refer to expansion of the pleading but rather to limiting the proof by amplification confined to restricting particulars. 'Many of the particulars sought would enlarge instead of limit defendants' pleading. Such particulars are not properly demanded, for a pleading may not be enlarged by a bill of particulars. The purpose of a bill of particulars is not to enlarge but to limit a pleading. See, Harmon v. Alfred Peats Co., 243 N.Y. 473, 154 N.E. 314; DuPont Auto Dist. v. DuPont Motors, 213...