Schwartz v. Brooklyn & Queens Transit Corp.

260 A.D. 947, 23 N.Y.S.2d 298, 1940 N.Y. App. Div. LEXIS 5571

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 18, 1940
• Status: Published

Opinion

In an action to recover damages for personal injuries, order granting plaintiff’s motion to examine defendant as an adverse party, by the operator of its street car, reversed on the law, with ten dollars costs and disbursements, and motion denied, without costs. Section 289 of the Civil Practice Act contemplates examination of defendant by employees who are such at the time of the examination, and if the relationship does not then exist, the court is without power to direct examination of the defendant as an adverse party through such a former employee. (McGowan v. Eastman, 271 N. Y. 195.) Irrespective of the manner in which the relationship of employer and employee was severed, there is no statutory authority for examination of the defendant, through a former employee, as an adverse party and so there is no power in the court to direct such examination. Lazansky, P. J., Hagarty, Carswell, Johnston and Taylor, JJ., concur.