76 N.Y.S. 668 | N.Y. App. Div. | 1902
The action is brought to recover damages for personal injuries alleged to have been sustained by the plaintiff, owing to an insecure covering of a coal hole in the sidewalk adjacent to premises alleged to have been in the possession and under the control of the defendants as executors and trustees. The defendants in their answer deny that they were in possession and control of the premises. The object of the examination is “ to enable the plaintiff to prepare for trial.” The examination is sought on the subject of the defendants’ possession and control over the premises, sidewalk, coal hole and grating covering it.
Ownership by defendants as executors and trustees is not alleged in the- complaint but it is shown by the moving papers. The plaintiff states that he intends to use the evidence on the trial of the action, and that he has no other means of obtaining it than by an examination of the managing trustee who has full knowledge of the facts. It will be incumbent upon the plaintiff to show that the defendants, as such executors or trustees, had possession and control of the premises and walk. It is quite probable, as claimed, that he cannot prove these facts except by the testimony of one of the defendants. It is, therefore, evident that the testimony is both material and necessary. (Leary v. Rice, 15 App. Div. 397.) It may disclose the defense in advance of the trial, but there is no reason to suppose that such is the object of the examination, and there is nothing in the nature of the issues by which it appears that the defendants will be prejudiced thereby. In those circumstances, the evidence being essential to enable plaintiff to prove his case, he should not be compelled to wait and incur the risk of inability to procure the attendance of the defendant upon the trial.
The order should be affirmed, with ten dollars costs and disbursements.
Pattebson, O’Bbien and Hatch, JJ., concurred; McLaughlin, J., dissented.
Order affirmed, with ten dollars costs and disbursements.
