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West v. Coney Island & Brooklyn Railroad

126 Misc. 674 Court Supreme Court, New York County, Decision date 1926-01-11 English

Delivered by Levy, J.

Contents

Majority

p. 674
Fred West, Plaintiff, v. The Coney Island and Brooklyn Railroad Company, Defendant.
Supreme Court, New York County,
January 11, 1926.

Headnote

Depositions — examination of witness before trial — plaintiff may examine defendant’s motorman as to condition of brakes and appliances of defendant’s car — motorman may be regarded as agent of corporation most familiar with condition of car.
Plaintiff is entitled to examine defendant’s motorman before trial as to the condition of the brakes and appliances of a car operated by said motorman, since, for all practical purposes, said motorman may be regarded as the agent of the defendant corporation most familiar with the condition of the brakes and appliances.
Motion by defendant to vacate. notice of examination of its motorman.
Bloomberg & Bloomberg, for the plaintiff.
George D. Yeomans, for the defendant.

Defendant makes this application to vacate a notice of examination of its motorman. The main objection urged which need be considered here is that the witness thus sought to be examined is not of managerial dignity, but merely an ordinary employee whose examination can be sustained only on proof of special circumstances requiring the same. The chief object of the examination is to prove the defective condition of the brakes and appliances. The person to be examined is the motorman who operated the car and who, for all practical purposes, may be regarded as the agent of the corporation most familiar with the condition of the brakes. As the plaintiff is entitled to an examination as to the lack of repair of the car (Preiss v. O’Donohue, 173 App. Div. 121 ), he should likewise be permitted to examine the particular employee of the defendant most familiar with the condition of the alleged defective appliance. The case of Lovasz v. Fowler ( 209 App. Div. 169 ) I do not consider applicable, because there an examination was sought of witnesses not shown to be in the employ of the defendant. The motion to vacate is denied. Settle order, in which provision may be made authorizing the examination to proceed.

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