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Metera v. Foster Paving Block Co.

171 A.D. 957 Court N.Y. App. Div. English

Delivered by Kellogg, J.:

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p. 957
Veronica Metera, as Administratrix, etc., of Stanislov Metera, Deceased, Respondent, v. Foster Paving Block Company, Appellant.

Headnote

Discovery — examination of party before trial.
Appeal by the defendant from an order of the Supreme Court, made at the Broome Special Term and entered in the Broome county clerk’s office on the 12th day of March, 1915, requiring an examination of two of its officers before trial and an examination of one Rover, plaintiff’s electrical expert, at the defendant’s plant, and he, the plaintiff’s counsel and the referee to be permitted to make an examination of the plant.

The right to examine a witness or party before trial is a statutory right, and to obtain it the statutory provisions must be complied with. The Special Term has no power to grant the original order; itmust be made by a judge. (Code Civ. Proc. § 873; Heishon v. Knickerbocker Life Ins. Co., 77 N. Y. 278 ; Wiechers v. New Home Sewing Machine Co., 38 App. Div. 1 ; Weinstock v. Hallenbeck, 163 id. 966.)[1] The order was, therefore, improperly granted at Special Term. We may state that the papers do not sufficiently show the necessity for the examination of the witness Rover and do not warrant his examination and the examination of the defendant’s plant. An examination of the plant cannot be obtained by such an order. Perhaps, upon proper facts shown, an inspection of the plant might be permitted under sections 803 to 809 of the Code of Civil Procedure. The order is, therefore, reversed, with costs. All concurred; Smith, P. J., Lyon and Howard, JJ., in result. Order reversed, with ten dollars costs and disbursements.

* See Code Civ. Proc. § 768, as amd. by Laws of 1911, chap. 763; Matter of Low, 171 App. Div. 83 , 84, note.— [Rep.

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