(Supreme Court, Appellate Division, First Department.Headnote
Discovert (§ 40*)—Automobile Accident—Examination of Defendant before Trial—Scope.Plaintiff sued for injuries by 'being struck by defendant’s automobile in a public street. Defendant’s liability for the operation of the machine at the time and place in question was put in issue, and he also denied all the allegations with respect to negligence in operating the same. Held that, in the absence of a showing that defendant’s examination before trial would be favorable or essential to plaintiff with reference to the question of negligence, her right to examine defendant before trial should be limited to the question whether defendant was operating the machine at the time, and, if not, as to what was his relation to the person who was operating it.
[Ed. Note.—For other cases, see Discovery, Cent. Dig. §§ 52, 53; Dec. Dig. § 40.*]
«Fer other cases see same-topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
Appeal from Special Term, New York County.
Action by Marie Brichta against J. Xavier Simon. From an order denying defendant’s motion to vacate an order for his examination before trial, defendant appeals.
Argued before INGRAHAM, P. J., and McLAUGHLIN, LAUGHLIN, CLARKE, and SCOTT, JJ.Clifford S. Bostwiclc, of New York City, for appellant.
Michael Schaap, of New York City (Charles H. Levitt, of Brooklyn, on the brief), for 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 $10 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. All concur.