Hannon v. City of New York

226 A.D. 757 | N.Y. App. Div. | 1929

Order affirmed, with ten dollars costs and disbursements. Examination to proceed on five days’ notice at same place and hour. Plaintiff seeks to examine the defendant, a municipal corporation, by taking the testimony of one of its employees which is material and necessary to his case. The defendant in its answer denies knowledge or information sufficient to form a belief as to the allegations contained in the plaintiff’s complaint setting forth an essential element of the plaintiff’s cause of action. In the absence of further showing, this negatives the plaintiff’s ability to procure the required information under the charter (§ 1545) ^† or the General Municipal Law (§ 51). The cases cited by the appellant ( Uvalde Asphalt Paving Co. v. City of New York, 149 App. Div. 491, and Davidson v. City of New York, 175 id. 969; affd., 221 N. Y. 487) are not controlling. Lazansky, P. J., Young, Hagarty and Seeger, JJ., concur; Carswell, J., dissents upon the ground that the decision herein is contrary to long and well-settled authority. (Davidson v. City of New York, 175 App. Div. 969; affd., 221 N. Y. 487.) The statutory provisions ^‡ with respect to examinations were enacted by the Legislature with fuk knowledge of the decisions excluding municipal corporations therefrom. Despite this, the Legislature has not by express language sought to include municipal corporations in the general provisions with respect to examinations.

† See Laws of 1901, chap. 466, § 1545.— [Rep.

‡ See .Civ. Prac. Act, §.288 et seq.— [Rep.