Pleska v. Curtiss-Wright Corp.

7 F.R.D. 149 | S.D.N.Y. | 1945

HULBERT, District Judge.

Plaintiff moves for an order “denying and striking out the list of defendant’s interrogatories served, without permission of the Court, pursuant to Rule 33, Federal Rules of Civil Procedure.”

This action, brought to recover damages for negligence, was commenced Aug. 14, 1944 and after issue joined defendant served notice pursuant to Rule 26, Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, and the deposition of the plaintiff was taken and completed. Thereafter, plaintiff by leave of Court, served an amended complaint substituting the following paragraph:

Seventh: That by reason of the defendant’s negligence, carelessness, lawlessness and disregard of its duty, plaintiff had to work in an atmosphere impregnated and saturated with fine metal particles, dust and other substances; that as a consequence, plaintiff became seriously ill; that he suffered a collapse of his right lung (and developed a bilateral pneumoconiosis;) and contracted respiratory infections and an aggravation and exacerbation of a prior existing pneumoconiosis; that plaintiff has suffered great pain and mental anguish; that upon information and belief, some of plaintiff’s injuries are permanent in nature and will evenutally cause his death.’* (Matter italicized new; in parenthesis omitted.)

The defendant may examine the plaintiff solely upon any new issue created by the service of the amended complaint, but such examination, in the interest of speeding the approaching trial of the case, shall be oral as provided by Rule 26 et seq. See Mc-Nally v. Simons, et al., D.C., 1 F.R.D. 254, 255; Currier v. Currier, D.C., 3 F.R.D. 21, 22. Settle order fixing time and place of such examination.