Phalen v. Roberts

| N.Y. App. Div. | Nov 15, 1897

Per Curiam :

The action was brought to recover damages for the negligent, killing of the plaintiff’s intestate, who fell from a scaffold on. which he was standing while working for the defendant as a plasterer. The defendant has not answered. It is not alleged in the moving affidavit that the plaintiff has any particular information or knowledge in regard to the matter which the defendant has not. It is stated, however, that the defendant has caused the facts connected with the alleged accident to be investigated, and after a diligent inquiry as to the erection of the scaffold andas to the material from which it is said to have been-made, and as to any other act of negligence tending to cause the accident, he has been unable to procure any information tending to support the allegations, in the complaint, and he cannot, therefore, imagine what facts the plaintiff intends to prove to "establish this negligence and maintain this action. It is further stated that -the defendant has fully and fairly stated facts within his knowledge to his counsel and has been advised that he has a good defense to the action on the merits. There is no suggestion in the papers that the defendant has not been able to ascertain ah the facts connected with the transaction, and that he does not know all about them. His complaint is that, knowing the facts, he is unable to ascertain wherein they constitute negligence. There is no suggestion either that information from the plaintiff is necessary to enable him to try his case or frame his answer. The motion, as it appears, is' a mere fishing excursion on the part of the defendant to learn what the plaintiff’s evidence- is, and he has not shown any facts which would warrant the court in giving him any help in his attempt to fill his basket.

■ The motion and order must be reversed, with ten dollars costs and disbursements, and motion denied, with ten -dollars costs.

Present — Van Brunt, P. J., Rumsey, Williams and Ingraham, JJ.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.