Bruno v. Board of Education

256 A.D. 1052, 10 N.Y.S.2d 909, 1939 N.Y. App. Div. LEXIS 6029

Opinion

Order so far as appealed from affirmed, with ten dollars costs and disbursements. Memorandum: It is argued by appellants that an examination before trial of the individual defendant will be in effect an examination of the other defendant, a municipal corporation, which is a practice the courts have not permitted, but the individual defendant in giving instruction was not an agent of the board of education. (Lessin v. Board of Education of City of New York, 247 N. T. 503.) Plaintiff should not be deprived of the privilege of examining the individual defendant (Civ. Prac. Act, § 288) merely because of the chance that a case may thereby be made out against the other defendant. It has even been held that where the board of education alone was sued, the teacher could be examined before trial. (McCutcheon v. Board of Education of White Plains, 242 App. Div. 659; Braun v. Board of Education of City of New York, 248 id. 586.) All concur. (The portion of the amended order appealed from granted plaintiff’s motion to examine one of the defendants before trial, in a negligence action.) Present — Sears, P. J., Crosby, Lewis, Cunningham and Dowling, JJ.