Raleigh v. City of New York

Appellate Division of the Supreme Court of New York

Raleigh v. City of New York

264 A.D. 776, 34 N.Y.S.2d 685, 1942 N.Y. App. Div. LEXIS 4677

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 4, 1942

StatusPublished

Cited by7 cases

This text of 264 A.D. 776 (Raleigh v. City of New York) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Raleigh v. City of New York, 264 A.D. 776, 34 N.Y.S.2d 685, 1942 N.Y. App. Div. LEXIS 4677 (N.Y. Ct. App. 1942).

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Opinion

The action by plaintiff Mary A. Raleigh is to recover damages for personal injuries sustained by her, and by her husband for loss of services and expenses, and by Edward F. Cooke, as administrator, for damages for wrongful death of his intestate. Plaintiffs moved for an order directing the defendant, by one Fusco, its motorman, to be examined before trial. The court granted the motion. Defendant consents to the examination but appeals from so much of the order as directs it to produce upon the examination for use thereon pursuant to section 296 of the Civil Practice Act, “ Ah writings, records, reports and memoranda made by the said Fusco, badge No. 5201, relating to and connected with the items and matters ” set forth in the notice of motion'1 and “ which were made prior to the service of the plaintiffs’ Notice of Intention to Sue herein.” Order granting examination before trial modified on the law by striking out the last ordering paragraph and inserting in lieu thereof a provision that the defendant produce upon the examination the writings, records, reports and memoranda made by said Fusco, badge No. 5201, relating to and connected with the items and matters hereinabove set forth, which were made prior to the service of the plaintiffs’ notice of intention to sue, and which writings, etc., are to be used to refresh the recollection of the witness upon the examination. As so modified, the order, in so far as appealed from, is affirmed, with ten dollars costs and disbursements to appellant, the examination to proceed on five days’ notice. The writings, etc., are not evidence and cannot be made the subject of discovery and inspection. (Ehrlich v. New York Central R. R. Co., 251 App. Div. 721, and cases cited.) In view of the foregoing decision, the appeal from the order denying appellant’s motion to resettle the order granting examination before trial is dismissed, without costs. Lazansky, P. J., Hagarty, Johnston, Adel and Close, JJ., concur.

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The action by plaintiff Mary A. Raleigh is to recover damages for personal injuries sustained by her, and by her husband for loss of services and expenses, and by Edward F. Cooke, as administrator, for damages for wrongful death of his intestate. Plaintiffs moved for an order directing the defendant, by one Fusco, its motorman, to be examined before trial. The court granted the motion. Defendant consents to the examination but appeals from so much of the order as directs it to produce upon the examination for use thereon pursuant to section 296 of the Civil Practice Act, “ Ah writings, records, reports and memoranda made by the said Fusco, badge No. 5201, relating to and connected with the items and matters ” set forth in the notice of motion'1 and “ which were made prior to the service of the plaintiffs’ Notice of Intention to Sue herein.” Order granting examination before trial modified on the law by striking out the last ordering paragraph and inserting in lieu thereof a provision that the defendant produce upon the examination the writings, records, reports and memoranda made by said Fusco, badge No. 5201, relating to and connected with the items and matters hereinabove set forth, which were made prior to the service of the plaintiffs’ notice of intention to sue, and which writings, etc., are to be used to refresh the recollection of the witness upon the examination. As so modified, the order, in so far as appealed from, is affirmed, with ten dollars costs and disbursements to appellant, the examination to proceed on five days’ notice. The writings, etc., are not evidence and cannot be made the subject of discovery and inspection. (Ehrlich v. New York Central R. R. Co., 251 App. Div. 721, and cases cited.) In view of the foregoing decision, the appeal from the order denying appellant’s motion to resettle the order granting examination before trial is dismissed, without costs. Lazansky, P. J., Hagarty, Johnston, Adel and Close, JJ., concur.

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Bluebook (online)

264 A.D. 776, 34 N.Y.S.2d 685, 1942 N.Y. App. Div. LEXIS 4677, Counsel Stack Legal Research, https://law.counselstack.com/opinion/raleigh-v-city-of-new-york-nyappdiv-1942.

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