24 N.Y.S. 238 | N.Y. Sup. Ct. | 1893
Elizabeth Nolan is the widow and administratrix of William Nolan, who was killed while employed and at work in and about an iron mine known as the “Nelson Bush Mine.” Elizabeth Nolan made an application to a justice of this court for the examination, before the commencement of an action, of Joseph Payette, alleging that her husband, William Nolan, was employed, by the said Payette, and while at work in the mine, controlled and operated under the direction of the said Payette, Payette negligently, carelessly, and unskillfully conducted the business of mining in said mine where Nolan was employed; that the mine became, by reason of Payette’s negligence and carelessness, unsafe and dangerous for the workmen employed therein, particularly to the deponent’s intestate, but of which danger said intestate had no notice or knowledge; and that, by reason of the negligence and carelessness of Payette in conducting the business of mining, said William Nolan was, without any fault or want of care on his part, killed,, by reason of which the deponent has sustained pecuniary loss and damages to the amount of $5,000. She further alleges in her affidavit, upon information and belief, that one James Vance and one-John M. Glidden were interested, in common with said Payette, as-owners, lessees, or otherwise, in the said mine, or in the product thereof; that the sources of deponent’s information and grounds-of her belief are common repute in and around the • neighborhood of the .said mine, and from conversations had with the-intestate prior to his death, and with others who then worked, and.
Upon such affidavit an order was granted for the examination of Joseph Payette. In the order such examination was limited to the determination of what interests the said Joseph Payette had in the mine at the time stated, and what interest Glidden and Vance had in said mine, if any, and whether the said mine was operated by them and Payette as partners, or whether there are other parties interested in said mine. That, after the granting of such order, the said Payette, upon his own affidavit and that of his counsel, applied to a special term of this court for an order to vacate the order providing for the examination of Payette. That in his affidavit Payette stated and alleged that there were other persons killed and injured in the same accident by which Holán lost his life; that the same attorneys who represent the applicant in this case had been retained by the representatives of all the parties killed or in; jured in said accident to prosecute their alleged claims; that an action has been commenced by such attorneys in behalf of one of such parties against the Arnold Ore Company; that an answer has been interposed in such action, among other things alleging that such mine was not operated by the Arnold Ore Company at the time of the accident, but was operated by one John M. Glidden; that in that action an order was made requiring Payette to appear and' be examined as to the affairs of the said Arnold Ore Company,
That a person intending to bring an action may examine the proposed adverse parties before a trial, has been decided in Bank v. Sheehan, 101 N. Y. 176, 4 N. E. Rep. 333. The appellant in this case states in her affidavit the cause of action, and that she has employed attorneys to prosecute it; that she desires this examination for the purpose, among other things, of preparing the complaint in such proposed action. That a person is entitled to an examination to discover the facts claimed by him to be necessary to enable him to frame his complaint has been decided in Glenney v. Stedwell, 64 N. Y. 120; Fatman v. Fatman, (Com. Pl. N. Y.) 18 N. Y. Supp. 847; Raymond v. Brooks, 59 How. Pr. 383; Hutchinson v. Lawrence, 29 Hun, 450. This examination is not sought for the purpose of ascertaining whether the applicant has a cause of action, but to ascertain who the cause of action is against. It sufficiently appears, I think, from the affidavits, that there is some doubt as to who are the owners or operators of the mine where the accident happened. It appears from the respondent’s affidavit that another action founded upon the same accident has been commenced by another party, appearing by the same attorneys who represent the appellant in these proceedings, and that an answer has been interposed, denying that the defendant in that action operated the mine at the time of the accident, and alleging that it was operated by one John M. G-lidden, one of the very persons that the appellant alleges in her affidavit she is informed and believes was interested in operating the mine in connection with another or others; so that it appears from the respondent’s own affidavit that a question has arisen as to who operated the mine at the time of the accident, and was responsible for any negligence in such operation. That it is necessary, to enable the appellant to frame her complaint, to ascertain who are the proper defendants, who were the owners or
no personal knowledge as to what interest either John M. Glidden or James Vance,” etc., which is not inconsistent with his having personal knowledge that they had some interest in operating the mine, or were copartners therein.
The order for the examination was so limited in its scope that it could not be used for fishing purposes. It was confined to the eliciting of information as to who were operating said mine at the time of the accident, and would therefore be proper parties defendant.
It seems to me, therefore, that the order for the examination was properly granted, and that the order of the special term vacating the same should be reversed, with costs of motion, together with $10, costs of this appeal, and printing and other disbursements. All concur.