Opinion
May, 1912.
James L. Quackenbush (John Montgomery, of counsel), for appellant.
Otto H. Droege, for respondent.
The order appealed from directs the defendant to permit a representative of the plaintiff to inspect a certain machine in the defendant's power-house, and to take a photograph of it. The order is made under section 803 of the Code of Civil Procedure and rule 14 of the General Rules of Practice. The technical objection is urged that the order should be reversed because it was granted upon an affidavit, instead of a petition verified by an affidavit. This was formerly held to be an irregularity which could not be disregarded. Lee v. Winans, 99 A.D. 297; Bloodgood v. Slayback, 62 id. 313. This rule, however, has been changed by an amendment to section 768 of the Code of Civil Procedure, effected by chapter 763 of the Laws of 1911. That section now provides that "any proceeding which is required by statute to be instituted by petition may also be instituted by an affidavit setting forth the matter which it is required that the petition shall contain, accompanying a notice of an application for the relief which would properly be prayed for in the petition; and in like manner a proceeding which is required by statute to be instituted by affidavit may be instituted by petition."
The order appealed from provides that the machine shall be inspected on the defendant's premises, and prescribes the day upon which, and the hours during which, the inspection and photograph shall be made. The order was promptly applied for after the institution of the action, which was commenced soon after the accident. Such an order sufficiently safeguards the defendant's rights, and I cannot see that there is any real danger of abuse from permitting it to stand. I think the order made was authorized within the meaning of section 803 of the Code of Civil Procedure in its present form. Cuca v. Lackawanna Steel Co., 138 A.D. 421, merely held that the order then under consideration did not provide for proper restrictions and safeguards, and that it was applied for too long after the accident. By implication, that case is authority for, rather than against, the order appealed from.
Order affirmed, with ten dollars costs and disbursements.
GERARD, J., concurs; GUY, J., taking no part.
Order affirmed.