Kinsella v. Second Ave. R. — 19 N.Y.S. 188

Majority

p. 188

Kinsella v. Second Ave. R. Co.

(Superior Court of New York City,

General Term.

May 2, 1892.)

Headnote

Injuries from Horse Cars—Examination of Plaintiff before Trial.

In an action to recover damages for personal injuries caused by the negligence of defendant’s servant in driving a horse car against plaintiff, an order for the examination of plaintiff before trial in unlimited terms, should have been confined to questions as to the time when and place where the-accident occurred, and place Of residence of plaintiff at that time.

Appeal from special term.

Action by Edward B. Kinsella against the Second Avenue Railroad Company to recover damages for personal injuries caused' by a collision of plaintiff with one of defendant’s horse cars. An order for the examination of plaintiff before .trial merely provided that plaintiff “be examined and his deposition be taken pursuant to section 873 of the Code of Civil Procedure, ” etc.

From an order denying a motion to vacate this order plaintiff appeals. Modified and affirmed.

Argued before Sedgwick, C. J., and McAdam, J.

W. Bourhe Cochran, ( Wales E. Severance, of counsel,) for appellant. Merrill & Rogers, (Jason Hinman, of counsel,) for respondent.

The action is for damage from negligence. It is a delicate matter, in this class of cases, to grant an order of examination that will cover all the issues. If such an order should be granted in all cases there would be great and unnecessary consumption of time, and probably hardship to plaintiff. There should be a modification of the order appealed from, by which the examination should be confined to questions as to the time when and the place where the alleged accident occurred, and as to his residence at the time of the accident. The order appealed from is modified in the respects indicated, and, as modified, is affirmed", without costs.