City of Buffalo v. Hanna Furnace Corp.

280 A.D. 623, 116 N.Y.S.2d 591

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 12, 1952
• Status: Published

Opinions

Per Curiam.

The defendants have moved for an order permitting them, pursuant to the provisions of section 288 of the Civil Practice Act, to take a deposition of Bertram D. Tallamy, Superintendent of Public Works of the State of New York and Chairman of the New York Thruway Authority, a public corporation. Neither the State nor the Thruway Authority is a party to the action, Mr. Tallamy’s deposition being sought as that of a witness. The proposed witness appeared on the motion and persuaded the Special Term to deny the order upon the ground that there was no authority theréfor.

While we believe an order granting the right to take the deposition of Mr. Tallamy in the instant case might, under the circumstances disclosed, be justified, we do not find any authority for the court to so order. There is no question that the authority for taking the deposition of a witness before trial is purely a creature of statute and has no roots in the common law: The portion of the statute upon which the defendants rely has never been interpreted, so far as we can discover, with regard to the examination, as a witness, of a governmental unit or its employees. There is, on the other hand, a considerable history of decisions and rather recent legislation regarding the other portion of section 288, which is directed to the taking of depositions of parties. The courts have long held that the State, municipalities or an employee of either could not be examined before trial as a party, even though the statute permits a party to take the deposition of “ any other party ”. (Rucker v. Board of Educ. of City of N. Y., 284 N. Y. 346 [1940]; Bush Terminal Co. v. City of New York, 259 N. Y. 509 [1932]; Friedman v. State of New York, 250 App. Div. 809 [1937]; Uvalde Asphalt Paving Co. v, City of New York, 149 App. Div. 491 [1912].) TMs conservative construction by the courts has been whittled away by later statutory enactments covering particular situations in which the State, municipalities or public corporations are parties. (Court of Claims Act, § 17, subd. 2; L. 1939, ch. 860; Civ. Prac. Act, § 292-a, as added by L. 1941, ch. 921, as amd. by L. 1942, ch. 830.)

The Legislature has, however, only piecemeal broadened the rule relating to pretrial depositions of governmental units, but has not, except in the case of a municipal or public corporation or where the action is brought in the Court of Claims, overturned the rule that the State itself or an agency thereof may not be required to give a deposition before trial when a party to the action. This in spite of the fact that the opportunity has presented itself most pointedly several times within a little more than the past decade.

Examination of witnesses before trial is not granted with the same freedom as the examination of a party. (Bloede Co. v. Devine Co., 211 App. Div. 180.) Thus, as the Legislature has not overruled the judicial interpretation of section 288 that the State or an agency thereof may not be examined as a party, we do not feel justified in construing the section to allow examination of a nonparty public corporation as a witness.

Such proposed expansion of the statute calls for legislative rather than judicial action.

The order should be affirmed, with $10 costs and disbursements.