155 N.Y.S. 799 | N.Y. App. Div. | 1915
The action is by a tenant against the owner of a tenement house for damages suffered in consequence, as it is alleged, of the negligence of defendant in permitting a stair carpet to become worn and dangerous.
The order sought to be vacated requires the examination of defendant, by four of its officers, as to all the issues in the action, and also calls for the production of certain papers and documents. This order is too broad and requires modification. The defendant, however, insists that it should be vacated absolutely. This contention is based mainly upon the erroneous supposition that this court had declared against any examination before trial in an action for damages for personal injuries. This is a mistake. No such general rule has ever been laid, down, nor could it be without ignoring the provisions of law providing for examination before trial in certain cases. The Code (§ 870 et seq.) makes no distinction between actions in tort and other actions, and we should have no right to establish an arbitrary rule upon the subject. What we have done is to say that under ordinary circumstances we would not permit a defendant to examine a plaintiff in an accident case
The order appealed from will, therefore, be so modified as to limit the order, for examination-before trial as above indicated; • and as so. modified affirmed, without costs to either party.
Ingraham, P. j., McLaughlin, Laughlinand Clarke, JJ., concurred.
Order modified as directed in • opinion, and as modified affirmed, without costs. Order to be settled on notice.