Rosen v. Simons

82 Misc. 407, 143 N.Y.S. 726

• Court: Appellate Terms of the Supreme Court of New York
• Decided: October 15, 1913
• Status: Published

Opinion

Bijur, J.

The action is brought by a pledgor to recover the value of a pledge alleged to have been stolen by burglars from defendants’ vault wherein they kept such pledges.

Plaintiff claims that the loss was caused through the negligence of defendants.

The case seems to be one in which an inspection as provided in section 803 of the Code is appropriate. See Chojnacki v. Interborough R. T. Co., 76 Misc. Rep. 427; Donoghue v. Callanan, 152 App. Div. 162; Beyer v. Transit D. Co., 139 id. 724.

The ultimate merits of the entire case on debatable questions of law urged by the defendants should not be decided on this motion. There seems, however, absolutely no reason why photographs of the vault should be taken.

The order should, therefore, be modified by permitting one inspection of the interior and exterior of the vault, not to exceed two hours, at some time convenient to defendants, which can, no doubt, be agreed-upon between the respective counsel, by the electrician and mason named in the order, in the presence of plaintiff’s counsel. The order may also provide that there shall be no disturbance of the structure of the vault nor of any apparatus connected with it. As so modified the order is affirmed, without costs of this appeal to either party.

Settle order on-notice.

Seabury and Guy, JJ., concur.

Order modified, and, as so modified, affirmed, without costs.