Perlman v. New Jersey & New York Railroad

243 A.D. 551

Opinion

Order in so far as it directs that plaintiff submit to an examination before trial modified by eliminating therefrom items (b), (c), (e) and (f), and as so modified affirmed, without costs. Items (a) and (d) are allowed because of the special circumstances shown in the moving papers. A bill of particulars will enable the respondent to obtain certain of the facts disallowed. The examination before trial to the extent herein allowed, the physical examination and the taking of the X-ray photographs to proceed on five days’ notice. Lazansky, P. J., Young and Tompkins, JJ., concur; Scudder and Davis, JJ., dissent and vote to affirm without modification, on the ground that this case represents one of the rare exceptions to the general rule that examinations will not be allowed of a party who must make proof of the particular facts as a part of his own case. Where a party in good faith makes claim that he has no knowledge of the facts constituting a cause of action or defense, the court may permit examination of the adverse party in the exercise of a sound discretion where it wifi tend to facilitate the trial by preventing surprise and promote the orderly development of the truth on the trial. (Public National Bank v. National City Bank, 261 N. Y. 316; Marine Trust Co. v. Nuway Devices, Inc., 204 App. Div. 752; Reiss v. Kirkman & Son, Inc., 242 id. 77.) We do not favor a general extension of the rule concerning such examinations, but a limitation thereof to a state of facts where a wise and sound discretion may properly be exercised.