216 A.D. 115 | N.Y. App. Div. | 1926
The duties of the defendant’s claim agent are not specified in the papers. The matters upon which an examination is sought relate to the operation, maintenance, equipment and management of an electric railway. None of these matters come within the scope of the ordinary claim department of a railroad and in respect to such matters a claim agent as such does not fall within the class of persons subject to examination under section 289 of the Civil Practice Act. Mr. T. C. Cherry, the vice-president and general manager, is, however, subject to examination under the terms of that section. The scope of the examination is discretionary and courts should be careful, especially in negligence
In the present case, under the pleadings, the examination should be confined to the facts and circumstances of the accident itself, the equipment, weight and condition of the railway car, the time schedule, and the operating rules and regulations having reference to the occasion in question. Expert opinions and experimental tests do not fall within the scope of permissive examination.
The order should be modified accordingly, and as modified affirmed, without costs.
Present — Httbbs, P. J., Davis, Sears, Crouch and Taylor, JJ.
Order modified in accordance with the opinion, and as modified affirmed, without costs of this appeal to either party.
