Berryman v. Board of Education

257 A.D. 915, 12 N.Y.S.2d 135, 1939 N.Y. App. Div. LEXIS 8384

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 17, 1939
• Status: Published

Opinion

Order so far as appealed from reversed on the law, with ten dohars costs and disbursements, and motion denied, with ten dohars costs. Memorandum: The appeal is from that part of an order which directs defendant to produce and permit plaintiff and his counsel to inspect those tools or implements used by the plaintiff at the time he sustained the personal injuries for which he seeks damages in this action. We reverse that part of the order from which appeal is taken upon the ground that the defendant is a municipal corporation (Education Law, § 300; Gen. Corp. Law, § 3, subd. 1; Matter of Fleischmann v. Graves, 235 N. Y. 84, 89) and, in the absence of specific mention of municipal corporations in those sections of the Civil Practice Act which make provision for discovery and examination before trial, the statutes are not applicable to the defendant. (Bush Terminal Co. v. City of New York, 259 N. Y. 509; Jewish Hospital of Brooklyn v. John Doe, 252 App. Div. 581, 584; Cooper v. Village of Brockport, 246 id. 571.) We do not regard the inspection of tools, which are under the control and supervision of the defendant, to be an exception to this rule. All concur. (The portion of the order appealed from grants plaintiff’s motion for an inspection of certain tools before trial.) Present — Sears, P. J., Lewis, Cunningham, Taylor and Dowling, JJ.