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Vial v. Jackson

73 A.D. 355 Court N.Y. App. Div. English

Delivered by *356 Laughlin, J.:

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p. 355
Edward C. Vial, Respondent, v. Henry H. Jackson and Others, as Executors and Trustees under the Last Will and Testament of Peter A. H. Jackson, Deceased, Appellants.

Headnote

Examination before trial as to the defendant’s possession and control of a coal hole in which the plaintiff has been injured,.
Where au action is brought to recover damages for personal injuries sustained by the plaintiff, in consequence of an insecure covering of a coal hole in the sidewalk, adjacent to premises alleged to have been in the possession and under the control of the defendants, as executors and trustees under a will, and the defendants interpose an answer denying that they were in possession and control of the premises, the plaintiff may properly be allowed to examine the managing defendant before trial, in regard to the defendants’ possession and control over the premises, sidewalk, coal hole and grating, where there is no reason to suppose that the object sought by the examination is to obtain a disclosure of the defendants’ case in advance of the trial.
McLaughlin, J., dissented.
Appeal by tlic defendants, Henry H. Jackson and others, as executors and trustees under the last will and testament of Peter A. H. Jackson, deceased, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 5th day of April, 1902, denying the defendants’ motion to vacate an order for the examination of the defendant Adrian H. Jackson before trial.
Edward W. 8. Johnston, for the appellants.
Thomas F. Mwrtha, for the respondent.

The action is brought to recover damages for personal injuries alleged to have been sustained by the plaintiff, owing to an insecure covering of a coal hole in the sidewalk adjacent to premises alleged to have been in the possession and under the control of the defendants as executors and trustees. The defendants in their answer deny that they were in possession and control of the premises. The object of the examination is “ to enable the plaintiff to prepare for trial.” The examination is sought on the subject of the defendants’ possession and control over the premises, sidewalk, coal hole and grating covering it.

Ownership by defendants as executors and trustees is not alleged in the- complaint but it is shown by the moving papers. The plaintiff states that he intends to use the evidence on the trial of the action, and that he has no other means of obtaining it than by an examination of the managing trustee who has full knowledge of the facts. It will be incumbent upon the plaintiff to show that the defendants, as such executors or trustees, had possession and control of the premises and walk. It is quite probable, as claimed, that he cannot prove these facts except by the testimony of one of the defendants. It is, therefore, evident that the testimony is both material and necessary. (Leary v. Rice, 15 App. Div. 397 .) It may disclose the defense in advance of the trial, but there is no reason to suppose that such is the object of the examination, and there is nothing in the nature of the issues by which it appears that the defendants will be prejudiced thereby. In those circumstances, the evidence being essential to enable plaintiff to prove his case, he should not be compelled to wait and incur the risk of inability to procure the attendance of the defendant upon the trial.

The order should be affirmed, with ten dollars costs and disbursements.

Pattebson, O’Bbien and Hatch, JJ., concurred; McLaughlin, J., dissented.

Order affirmed, with ten dollars costs and disbursements.

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