McNamara v. New York State Railways — 129 Misc. 130

Majority

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Mary C. McNamara, Plaintiff, v. New York State Railways, Defendant.

Supreme Court, Monroe County,

March 4, 1927.

Headnote

Depositions — examination of defendant before trial — Civil Practice Act, § 288, does not authorize examination before trial in negligence action as to names of witnesses known to defendant or production of books and papers of corporation containing reports of accident.

In an action for negligence, an examination before trial as to the names and addresses of witnesses known to the defendant or the production, in connection with such examination of the corporation, of books, records and papers containing the reports or accounts of the accident which were made by the employees of the corporation, is not permitted under section 288 of the Civil Practice Act.

Motion by plaintiff for examination of defendant before trial.

Wile, Oviatt & Oilman, for the motion.

Harris, Beach & Matson, opposed.

Examination granted as to all matters enumerated in the moving papers except (1) as to names and addresses of witnesses to the accident which were taken by the employees of the defendant at the time of .the accident, and (2) the production of books, records and papers of the defendant which contain reports or accounts of the accident, including list or lists of witnesses.

The examination as to witnesses would require the defendant to disclose the preparations that it has made for trial and the production of its reports and accounts of the accident would require it to disclose its private papers and memoranda made in preparation for trial. Neither side is entitled to such information as the other side has gathered in preparation of a cause of action or defense, any more than it would be entitled to the examination of a trial brief.

The practice permits a plaintiff to examine his adversary as to matters material and necessary in the prosecution of his case (Civ. Prac. Act, § 288), but this language does not go to the extent of allowing a disclosure of a defense either as to witnesses or their affidavits, or reports of employees of accidents, or papers in

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preparation for trial. (Douglass v. Meyer, 61 N. Y. Super. Ct. [29 J. & S.] 369 ; Fourth National Bank v. Boynton, 29 Hun, 441 ; Beach v. Mayor, 14 id. 79, 82; National Fire Ins. Co. v. Shearman, 209 App. Div. 538 ; Oshinsky v. Gumberg, 188 id. 23.) Motion granted except as indicated.