Brichta v. Simon

152 A.D. 832, 137 N.Y.S. 751, 1912 N.Y. App. Div. LEXIS 8643

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 25, 1912
• Status: Published

Opinion

Laughlin, J.:

This is an action for personal injuries alleged to have been caused by the negligent operation of the defendant’s automobile on one of the public streets of the city of New York. The liability of the defendant for the operation of the automobile at the time and place in question is put in issue. It is incumbent on the plaintiff, therefore, to show whether the defendant was operating the automobile, and if not, his relationship to the person who' was operating it, and to that extent she was entitled to an order for the examination of the defendant. The defendant, however, denies all of the allegations of the complaint with respect .to negligence in operating the automobile, and nothing is shown to indicate that his examination on that point would be favorable, or is essential, to the plaintiff.

It follows, therefore, that the order should be reversed, with ten dollars costs and disbursements, and the motion granted to the extent of modifying the order for the examination of the defendant, by limiting it to proof as to who was operating the automobile, and the defendant’s responsibility therefor.

Ingraham, P. J., McLaughlin, Clarke and Scott, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted to extent stated in opinion. Order to be settled on notice.