Majority
p. 412Harry Berg, an Infant, by Joseph Goldberg, His Guardian ad Litem, Respondent, v. The William Horne Company, Appellant, Impleaded with Pasquala Mosca, Defendant. Second Department, October 6, 1911.
Headnote
Discovery — negligence action — examination of defendant before trial.The plaintiff in an action to recover for personal injuries may examine the defendant before trial to obtain evidence to prepare his case for trial and to avoid the defense that the work on which the plaintiff was injured was done by ah independent contractor..
The examination of the defendant should not be limited to the single question as to what work was being performed by the defendant at the time of the accident. . .
Appeal by the defendant, The William Horne Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the officó of the clerk of the county of Kings on the 10th day of April, 1911, denying a motion to vacate an order for the examination of the said defendant before trial.
Theodore H. Lord [Fred P. Harrington and Lyman A. Spalding with him on the brief], for the appellant.
Samuel A. Telsey, for the respondent.
On the 31st day of March, 1911, Mr. Justice Crane made an order, ex parte, requiring the examination of the defendant as
p. 413
an adverse party before trial: The action is brought to recover damages for personal injuries, and one of the defenses is that the work was being done by an independent contractor, and not by the appellant. The object of the examination is to prepare the plaintiff’s case for trial, and to obtain evidence for that purpose in support of the cause of action, and in avoidance of this special defense. The object appears to have been held to be legitimate in Schweinburg v. Altman ( 131 App. Div. 795 ). The appellant obtained an order to show cause why the order requiring the examination should not be set aside, and the order appealed from denying that motion was made by Mr. Justice Blackmar.
The appellant asks that the order be reversed, but the affidavit on which the order to show cause was granted stated that the object sought was to obtain an order limiting the examination to the single question as to what work was being performed at the time by the appellant. We do not think the order for the examination should be limited to that single question, and recommend that the order be affirmed, with "ten dollars costs and disbursements.
■ Jenks, P. J., Hirschberg, Burr, Thomas and Bich, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.