Hill v. Bloomingdale — 136 A.D. 651

Majority

p. 651

George Hill, Appellant, v. Samuel J. Bloomingdale and Others, Copartners Doing Business under the Firm Name and Style of Bloomingdale Brothers, Respondents.

First Department,

February 18, 1910.

Headnote

Deposition — examination of witness to frame bill of particulars.

A defendant charged with negligence, having obtained an order requiring the plaintiff to give particulars of defects in an elevator which caused the . injury, is in no position to contest the plaintiff’s right to an examination of the employee who ran the elevator, if he can only’furnish the particulars by such examination, and mere proof of the circumstances would probably cast the burden of explaining the accident upon the defendant.

An order for the examination of a witness not a party sought upon the ground of special circumstances should be sparingly granted, and only when it is necessary to prevent a failure of justice.

Appeal by the plaintiff, George Hill, from an order of the Supreme Court, madé at the New York Special Term and entered in the office of the clerk of the county of New York on the 31st day of December, 1909, vacating an order for the examination of a witness before trial.

Arthur J. Levine, for the appellant.

Earle W. Webb, for the respondents.

The action is for personal injuries sustained by the plaintiff while attempting to alight from an elevator located in the defendants’ building and operated by them. It is alleged that the elevator suddenly started, precipitating the plaintiff down the shaft and that that was due to the negligence of the defendants “ and the negligent and defective equipment, construction and operation of the said elevator and its shaft and the equipments, appliances and- appurtenances thereof.” The plaintiff desires to examine the defendants’ employee who‘was running the elevator, and the “ special circumstances” (Code Civ. Proc. § 872, subd. 5) upon which he -relies to justify the examination are the following, viz., that the plaintiff was

p. 652

injured on the defendants’ premises by the sudden. starting of an elevator controlled and operated by them and can prove-the cause of the accident only by the witness sought to be examined, who is in the defendants’ employ ; that upon the defendants’ motion the plaintiff has been required to furnish a bill of particulars stating “in What respect the elevator was defectively equipped, constructed and operated, specifying each and every defect that the plaintiff expects to prove upon the trial of this action,” and that he cannot, comply with said order unless permitted to. examine said witness.

It is possible that, .by proving the occurrence and the attending circumstances the plaintiff could put the ‘burden of explaining the acci-, dent upon the defendants. (Griffen v. Manice, 166 N. Y. 188 .) At any rate, he should not have been required to furnish the particulars specified. If the defendants insist upon the plaintiff furnishing specifications, they should, at least afford him the means of ascertaining them which they possess, otherwise he will be precluded from giving evidence upon the trial of specific defects. Courts sit to accomplish justice, not tó rule upon the points of a game of sharp tactics. A recent decision of the court in this department is controlling. (Chittenden v. San Domingo Improvement Co., 132 App. Div. 169 .) If the defendants do not wish to have the witness examined let them waive the giving of a bill of particulars by the plaintiff. It should be said that orders for the examination of a witness, not a party, sought upon the ground of special circumstances, should be sparingly granted and then only where it. appears to be necessary to prevent a failure of justice. ' ,

The. order should be reversed, with' ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Ingbaham,. P. J., Laugiilin, Clarke and Scott, JJ., concurred.

Order reversed, with ten dollars costs and. disbursements, and-motion denied, with ten dollars costs.

Cases cited

Griffen v. Manice 166 N. Y. 188 N.Y. 1901-03-12 p. 652