Pomata v. Long Island Rail Road

271 A.D.2d 1020

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 17, 1947
• Status: Published

Opinion

In an action to recover damages for wrongful death, plaintiff appeals from so much of an order for the examination of defendant before trial as denied the examination by defendant’s employees Ott and McCormick, and from so much of the order as denied the examination of the witness Edith Ronfeldt. Order modified on the law and the facts (1) by granting defendant’s examination by the employees Ott and McCormick as to item 10 of the notice of motion; and (2) by providing that the denial of the examination of the witness Edith Ronfeldt is without prejudice to another application on proof showing that the witness is hostile. As so modified, the order, insofar as appealed from, is affirmed, without costs, the examination to proceed on five days’ notice. The examination of defendant by the employees Ott and McCormick should have been permitted. In view of the fact that this is a death case and that Mrs. Ronfeldt is alleged to be the only eyewitness to the accident, leave is granted to renew the application for her examination as a witness. It was not alleged that the witness refused to give plaintiff a statement of the facts concerning the accident, nor was there any other proof of reluctance, hostility, or unwillingness. Hagarty, Acting P. J., Carswell, Johnston, Adel and Nolan, JJ., concur.