Brichta v. Simon — 152 A.D. 832

Majority

p. 832

Marie Brichta, Respondent, v. J. Xavier Simon, Appellant.

First Department,

October 25, 1912.

Headnote

Discovery — negligence — injury by automobile — examination of defendant before trial.

Where in an action to recover for personal injuries alleged to have been caused by the negligent operation of an automobile the defendant denies all allegations as to negligence, and it is incumbent upon the plaintiff to show that the defendant was operating the vehicle, and, if not, his relation to the person who was operating it, the plaintiff is entitled to examine the defendant before trial on that question, but is not entitled to an examination upon other questions, if nothing indicates that the examination would be favorable or essential to him.

Appeal by the defendant, J. Xavier Simon, from an order of the Supreme Court, made at the New York Special Term

p. 833

and entered in the office of the clerk of the county of New York on the 26th day of July, 1912, denying the defendant’s motion to vacate an order for his examination before trial.

Clifford S. Bostwick, for the appellant.

Michael Schaap [Charles H. Levitt with him on the brief], for the respondent.

This is an action for personal injuries alleged to have been caused by the negligent operation of the defendant’s automobile on one of the public streets of the city of New York. The liability of the defendant for the operation of the automobile at the time and place in question is put in issue. It is incumbent on the plaintiff, therefore, to show whether the defendant was operating the automobile, and if not, his relationship to the person who' was operating it, and to that extent she was entitled to an order for the examination of the defendant. The defendant, however, denies all of the allegations of the complaint with respect .to negligence in operating the automobile, and nothing is shown to indicate that his examination on that point would be favorable, or is essential, to the plaintiff.

It follows, therefore, that the order should be reversed, with ten dollars costs and disbursements, and the motion granted to the extent of modifying the order for the examination of the defendant, by limiting it to proof as to who was operating the automobile, and the defendant’s responsibility therefor.

Ingraham, P. J., McLaughlin, Clarke and Scott, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted to extent stated in opinion. Order to be settled on notice.