284 N.Y. 346 | NY | 1940
The action is in negligence. Plaintiff moved in the action at Special Term for an examination before trial. Special Term denied the application. The Appellate Division reversed, granted the motion, and certified the following question to this court: "Was the order of the Special Term denying the motion for an examination before trial properly made?"
An examination before trial of a municipal corporation has been held by us not authorized under the provisions of the Civil Practice Act (§§ 288, 289). (Davidson v. City of New York,
Does the rule applied to municipal corporations apply likewise to the Board of Education? The Board of Education, even if it is not a municipal corporation in the same sense as that term is applied to a city, nevertheless is without doubt a public corporation as distinguished from a private corporation. InGunnison v. Board of Education (
Respondent urges that the case at bar arises out of alleged negligence in the proprietary activities of the Board of Education rather than its governmental function and, therefore, as to such proprietary activities, an examination before trial should be had. Such contention overlooks the fact that the sections of the Civil Practice Act providing for an examination before trial make no division based upon the subject-matter of the suit but deal only with the parties to be examined. InKasitch v. City of Albany (
It follows that the order should be reversed, the motion of plaintiffs denied, without costs, and the certified question answered in the affirmative.
LEHMAN, Ch. J., LOUGHRAN, RIPPEY, SEARS, LEWIS and CONWAY, JJ., concur.
Order reversed, etc. *350