176 Misc. 906 | N.Y. Sup. Ct. | 1941
It appears from the amended complaint that the plaintiff was a passenger in an automobile owned and operated by the defendant Robert J. Neustaedter which collided at a street intersection with an automobile owned by defendant Edith Lyon and operated with her consent by defendant Scott Lyon. The plaintiff served a notice to take the deposition before trial of the defendant Scott Lyon as an adverse party pursuant to sections 288 and 290 of the Civil Practice Act concerning the facts and circumstances surrounding the operation of both automobiles at the time of the accident.
The decision of this motion depends upon whether the burden is upon the plaintiff to establish her right to examine the defendant Scott Lyon before trial, or whether it be upon the defendants Lyon to demonstrate that he should not be so examined.
It is immaterial to this question whether the party seeking an examination before trial has proceeded by the service of a notice to take the testimony by deposition pursuant to section 290, or has applied for an order in the first instance under section 292. When the right to take the examination has been challenged, either by motion to vacate or modify the notice, or by opposing the granting of the order to take the testimony, the burden of proving that the examination is material and necessary (§ 288) is upon the applicant for the examination. (Wood v. American Locomotive Co., 246 App. Div. 376, 378;Lovasz v. Fowler, 209 id. 169; McCullough v. Auditore, 215 id. 89; Kahn & Feldman, Inc., v. Brooklyn Edison Co., Inc., 228 id. 668; Glasser v. Toke Gutson Borglund, 248 id. 898; Abels v. Rubin, 145 Misc. 806, 808.) There is no more rational basis for requiring a party moving to vacate to prove the negative in this matter than there would be in insisting that a party moving to vacate a demand for a bill of particulars under rule 115 of the Rules of Civil Practice should undertake the burden of establishing that his adversary can safely proceed to trial if the data specified in the demand be not supplied.
Doubtless “ the burden of applying to the court is cast upon the party who desires to question the right to his examination.” (Buehler v. Bush, 200 App. Div. 206, 208.) That may tend to minimize Special Term practice, but clearly does not refer to the burden of proof upon a motion to vacate if the right to the examination be contested. It means that if the party to be examined ignores the notice of deposition without going forward by making a motion to vacate or modify under section 291, he will allow the relief to be obtained against him by default. It" is analogous to the rule that where a party defaults in answering he is deemed to have admitted the truth of all traversable allegations in the complaint. (McClelland v. Climax Hosiery Mills, 252 N. Y. 347, 351.) That does not signify that if a defendant contests an action the burden will be on him to disprove the plaintiff’s case. That the party opposing
It cannot be held that the plaintiff herein has sustained the burden of proof justifying her examination of the defendant Scott Lyon merely by showing that it is an automobile negligence action. Under the new Federal Rules of Civil Procedure (U. S. Code, Supp. V, pp. 866, 868, rules 26 and 30) such an examination would be granted as of course. Likewise the defendant would be permitted an examination before trial of the plaintiff, even though not material or necessary to the defense of the action, merely for the purpose of contradicting or impeaching the testimony of the plaintiff when called as a witness on the trial. Three times the Judicial Council has recommended the adoption of such procedure in New York. (1936 Rep. p. 163; 1937 Rep. p. 41; 1938 Rep. p. 53.) Since the present Federal rules became effective on September 16, 1938, the Judicial Council has decided to take advantage of the opportunity thereby presented to observe the results of their operation before making further recommendations for this State. (1939 Rep. p. 45; Parsons v. Moss, 171 Misc. 828, 832.) The experience of the Federal courts may result in the adoption in New York of the same practice. It should not be given effect in advance by judicial fiat in isolated cases. General examinations before trial may be had in negligence as in other actions where shown to be material and necessary. (Goodman v. Stein, 261 App. Div 548; Weiner v. Hass, Inc., 158 Misc. 181; Schonhous v. Weiner, 138 id. 759; Parsons v. Moss, supra; Swift v. General Baking Co., 129 Misc. 135; Cherbuliez v. Parsons, 123 App. Div. 814.) In these cases, however, special circumstances appeared establishing that the party applying for the examination was but obscurely acquainted with the facts. That is what makes the examination material and necessary. Doubtless knowledge, in certain instances, is insufficient
The motion to vacate the notice of deposition is granted.