184 Misc. 859 | N.Y. Sup. Ct. | 1945
In an action to declare unconstitutional the building zone resolution (N. Y. City Zoning Resolution, eff. June 28, 1940, as amd.) insofar as it affects plaintiff’s property, and to rezone it for unrestricted purposes, the defendant, the City of New York, moves to vacate plaintiff’s notice, which seeks to take the depositions of the defendant by certain of its officials.
The only question raised by the City is whether public officials and employees of a municipal corporation may be examined before trial. It is urged that section 292-a of the Civil Practice Act is not applicable to this type of action; that said section permits a municipal corporation to be examined only in negligence actions arising out of the operation of a public utility; and that it was enacted for the specific purpose of permitting examinations in negligence actions arising out of the operation of the subway system taken over by the City upon the consummation of the unification agreement.
The limitation of the 1941 statute that it was applicable only to causes of action asserted against a municipal corporation arising out of its or its assignor’s ownership, operation or maintenance of a public utility was thus eliminated in the statute now in force. The change effected by this revision is significant and cannot be ignored. (Cf. Loos v. City of New York, 257 App. Div. 219.) It is evident that it was intended by the Legislature to permit the courts to grant examinations before trial in all cases where a public corporation is a party to an action whether or not it arose out of ownership, or operation of a public utility or of a rapid transit railroad system (see Third Annual Report of N. Y. Judicial Council, 1937, p. 253, and Eighth Annual Report of N. Y. Judicial Council, 1942, pp. 374, 376). Otherwise the language of limitation would not have been eliminated in thé amended statute. It is well settled that the Legislature will be presumed to have intended to effect a
The last sentence found in both the'1941 statute and the 1942 amendment does not limit its application to negligence cases. As stated on page 376 of the Eighth Annual Report of the Judicial Council (1942) “ This provision was enacted specifically to circumvent the conflict prevailing among the various departments regarding depositions in negligence actions # * *
The motion to vacate plaintiff’s notice of examination as a matter of law must be denied. The notice must, however, be modified so as to limit the examination to facts and eliminate therefrom matters of public record and conclusions of either law or fact. Accordingly, the court in its discretion will allow examination of the defendant by the engineer in charge of the Topographical Bureau of the Borough of Queens in respect to items 1 and 3, and item 2 eliminating all language in the first and second lines thereof, ending with the word ‘ ‘ purposes ’ ’ in the third line. The remaining items will be eliminated from the notice of examination. The examination will take place in the office of the said engineer so as to facilitate access to records which the witness may require to refresh his recollection, and eliminate any loss of time which might be incident to his examination elsewhere. The parties will agree on the time of such examination in the order which is to be settled on notice.