Rosenberg v. State

277 A.D.2d 920

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 27, 1950
• Docket: Claim No. 29854
• Status: Published

Opinion

Appeal from an order of the Court of Claims entered in the. office of the clerk of the Court of Claims on February 1, 1950. The action is to recover for personal injuries alleged to have resulted from the negligent operation of a motor vehicle operated and controlled by the New York National Guard. The appeal is from an order of the Court of Claims granting an examination before trial of the State by certain officers of the New York National Guard, pursuant to subdivision 2 of section 17 of the Court of Claims Act and section 296 of the Civil Practice Act. It is the contention of the State that subdivision 2 of section 17 of the Court of Claims Act authorizes the examination before trial of an “ officer or employee ” of the State only, and that members of the State National Guard are not such persons. An enabling act (L. 1949, eh. 829) authorizes the claim, however, confers jurisdiction upon the Court of Claims, and consents to the determination of such claim by the Court of Claims. By this special act the Legislature created a contingent liability and a remedy, and any reasonable construction of the intent of the Legislature must presume that the remedy was to be effectual to the same extent as the remedy in any claim. This includes matters preliminary to trial. The persons sought to be examined must be considered as included in subdivision 2 of section 17 of the Court of Claims Act. Order unanimously affirmed, with $10 costs and disbursements to respondent. Present — Foster, P. J., Brewster, Deyo, Bergan and Coon, JJ.