Opinion
May, 1919.
The strong case made by the respondent entitles her to learn whether to sue De Jonge Co. or the railroad as the principal answerable for the acts of Hart in operating the steam shovel which ruptured the water mains through which was respondent's water supply. But such an order for examination of Hart or De Jonge cannot be had before action has been begun, unless to perpetuate testimony. ( Matter of Dain's Sons' Co. v. Lowry, 146 App. Div. 918; affd., 204 N.Y. 623.) Here the purpose is to find out whom to sue, which is not a case to examine one departing, sick or infirm, who will otherwise be unable to attend the trial under Code of Civil Procedure, section 872. There must be danger that such testimony will be lost before a trial can be had. (3 Story Eq. Juris. [14th ed.] § 1957; Matter of Fulton, 75 App. Div. 623; Matter of Schlotterer, 105 id. 115; Matter of Moto Bloc Import Co., No. 1, 140 id. 532.) The order of the County Court of Richmond county is, therefore, reversed, with ten dollars costs and disbursements, and motion to vacate order for examination granted. Jenks, P.J., Mills, Putnam, Kelly and Jaycox, JJ., concurred.