Illacqua v. F. & M. Schaefer Brewing Co.

24 Misc. 2d 1025, 205 N.Y.S.2d 751, 1959 N.Y. Misc. LEXIS 3278

• Court: New York Supreme Court
• Decided: July 20, 1959
• Status: Published

Opinion

Henry A. Hudson, J.

The defendant, the F. &■ M. Schaefer Brewing Co., has moved pursuant to section 288 and rule 121-a of the Rules of Civil Practice for an order to examine the defendant, Helen Ann Turner, before trial concerning all the relevant facts and circumstances in connection with an accident alleged in the complaint including negligence, contributory negligence, liability and damages. The defendant, Helen Ann Turner, opposes such motion on the ground that one codefendant may not examine another codefendant before trial in the absence of a cross claim or some other special circumstances.

There have been a number of decisions in the lower courts on this question, some holding that an examination should be permitted and some refusing to permit an examination. Many of these decisions were rendered previous to the adoption in 1952 of rule 121-a of the Rules of Civil Practice, which eliminates one of the former objections to the allowance of such examinations, namely, the fact that the moving party did not have the burden of proof. It seems to me that the majority of the decisions since the adoption of rule 121-a have allowed such examinations. Such determinations appear to follow the well-recognized present day practice of liberalizing the pretrial procedure in order to facilitate and expedite the determination of litigation. (Rules Civ. Prac., rule 121-a; Fenwick v. Kappler, 205 Misc. 594; Powers v. Marrone, 206 Misc. 173; Pedersen v. Board of Fduc., 9 Misc 2d 603.)

The defendant, Helen Ann Turner, opposes the motion but upon the application requested the court, if the motion were to be granted and an examination permitted of the defendant, Helen Ann Turner, that the order also provide that such defendant would be granted permission to examine the moving defendant, the F. & M. Schaefer Brewing Co. I do not consider that such relief is proper upon this motion but it would appear that in granting the relief requested herein, any question as to the right of the defendant, Helen Ann Turner, to examine the moving defendant, would be likewise resolved.

The motion is granted, with $10 costs, without prejudice to the right of the defendant, Helen Ann Turner, to serve the five days ’ notice provided for in rule 121-a for the examination of any other party.