152 N.Y.S. 465 | N.Y. Sup. Ct. | 1915
The plaintiff, by an order to show cause, moves this court for an order to compel one Fred P. Husted, alleged to be the managing agent of the defendant, to submit to an examination before' trial, and to produce certain books, papers, records, cards, etc., at such examination. There has been a modern disposition to enlarge the powers of the court in the direction of giving adverse parties an opportunity to examine before trial, and the old-time technical rules have been largely swept aside. Cherbuliez v. Parsons, 123 App. Div. 814. It is, however, still necessary that the party moving the court should present the necessary facts to justify the order, and primarily it must be made to appear that the “ testimony is necessary and material,” to the cause of-action. The petition before this court, which sets out practically the same facts alleged in the complaint, in attempting to comply with this requirement of the statute, says 1 ‘ that among other allegations in said complaint, it was alleged that the injuries sustained
We may assume that if it was made to appear that these alleged issues were necessarily involved in the plaintiff’s cause of action it could be spelled out of the above allegations that the plaintiff intended to use the testimony thus solicited' on the trial of the action, although it is certainly not clearly set forth; the suggestion is that the plaintiff desires the examination to prepare for the trial, rather than that the testimony is necessary and material to the establishing of the cause 'of action. There is no direct allegation that the testimony of Fred P. Husted, the secretary and treasurer of the defendant is “necessary and material ” to the establishing of the alleged cause ' of action; we are told that the complaint alleged certain matters and that the defendants have interposed an answer, “ putting in issue, among other things, .the
The complaint alleges that the defendant is a domestic corporation “ engaged in the preparing, bottling, selling and distributing of milk and milk products for immediate consumption in the city of Buffalo, and did, and does'now,-hold itself out to be specially equipped, prepared and qualified for that purpose and for the purpose of preparing, bottling, selling and distributing for sale only pure, clarified and perfectly pasteurized sweet milk and cream for immediate consumption ; that the defendant1 ‘ leaves with divers and local grocers and merchants in said city, quart bottles of such milk, so prepared, for sale and distribution among, and immediate consumption by, the persons in their respective localities;” that “ on or about the 26th day of January,- 1914, the defendant left such milk, so prepared, at the store of Darwin F. Emens, 217 DeWitt street in said city; such milk was sealed with defendant’s seal and bottled in defendant’s bottles at defendant’s plant and delivered to said Emens by defendant for delivery by him to customers- and
The complaint then alleges that on the said twenty-sixth day of January, ‘ ‘ plaintiff caused to be purchased a quart bottle of such milk, so left at said Emens store, for immediate consumption by herself and family, and upon information and belief that said bottle and milk were in the same condition when purchased for plaintiff as when delivered to said Emens by defendant; that plaintiff opened said bottle and consumed some of the cream and milk therein, practically immediately after its purchase.” This allegation is denied on information and belief, and is clearly the material issue so far presented in the case.
Then follows the allegation on information and belief that said milk was not pure, wholesome or clarified, but, on the contrary, contained poisonous and deleterious substances solely through the negligence and carelessness of the defendant in purchasing bottles therefor, washing and cleaning the same, guarding and protecting its milk and containers from poisonous substances, and in failing to have pure milk bottled in pure, clean bottles and so handled and pror tected that no poisonous substances could get therein. ’ ’ Obviously the actionable negligence is not in the purchasing of bottles; the defendant owed the plaintiff and the public no duty in this regard. The actionable
the present case, the sale of the poisonous article was made to a dealer in drugs, and not to a consumer. The injury, therefore was not likely to fall on him, or on his vendee, who was also a dealer; but much more likely to be visited on a remote purchaser, as actually happened. The defendant’s negligence put human life in imminent danger. Can it be said that there was no duty on the part of the defendant, to avoid the creation of that danger by the exercise of greater caution? or that the exercise of that caution was a duty only to his immediate vendee, whose life
The principle of the above case has been consistently followed, both in this state and by the Supreme Court of the United States (Kuelling v., Roderick
An order denying the motion may be entered, with ten dollars costs.
Motion denied, with ten dollars- costs.