Galligan v. August — 45 N.Y. St. Rep. 276

Majority

p. 276

Thomas P. Galligan, Resp’t, v. Matilda August, App’lt.

(City Court of New York, General Term,

Filed March 10, 1892.)

Headnote

Depositions—Examination before trial.

In an action for damages alleged to have been caused by the negligence of defendant as owner of certain realty, where the defendant admits ownership, but denies possession or control, an examination of defendant before trial is not necessary and should not be granted, as the fact can be easily ascertained in many other ways.

Appeal from order denying motion to vacate order for examination.

J. J. & A. Lyons, for app’lt; J J. Bode, for resp’t.

An order for the examination of an adverse party before trial is not matter of strict rightj and should be sustained only where the evidence is material to the party seeking ' it and there is danger that the oral evidence of - the party cannot be had at the trial. Jenkins v. Putnam, 106 N. Y., 272 ; 8 St. Rep., 710 .

At all events, it is for this court to determine whether a proper case for aú examination in advance of the trial has been established.

The action is to recover damages for injuries received-by the-negligence of the defendant, as owner of certain realty.

The defendant admits the ownership, but denies “possession and control”

Ordinarily, these things follow the legal title, and if any one else is in possession or control, the fact ought to be easily ascertained in many ways.

If the examination of the defendant becomes necessaiy (and it probably will not), it may be had at the trial.

At all events, we find no necessity for the examination in advance of the trial, and deem the attempt to obtain it experimental.

p. 277

It follows that the order appealed from must be reversed, with costs,

Tan Wyck and Fitzsimons, JJ., concur.