Opinion
June 2, 1922.
William Dike Reed [ William B. Shelton of counsel], for the appellant.
Herman Goldman [ Max A. Geller of counsel; I. Gilbert Ornstein and Harlan A. Kashden with him on the brief], for the respondent.
The complaint alleges that the defendant was the owner of an apartment house and had reserved to itself control of various portions thereof, to wit, the vestibule and halls which were used in common by all the tenants and others lawfully within the premises for the purpose of entering and leaving said house; that the plaintiff was the wife of and resided with a tenant in one of the apartments; that there was a wooden door between the outer vestibule and the inner hall, which door consisted of a wooden frame designed to inclose and customarily inclosing a large plate glass panel; that on September 7, 1921, the plate glass panel in said door was missing, and that the defendant negligently permitted said door to be closed and locked, and negligently permitted the opening in said door caused by the removal of the glass panel to remain unprotected, and that plaintiff while lawfully proceeding through the aforesaid vestibule for the purpose of going to her apartment, and while attempting to open said door, fell into and through said door and received the injuries complained of.
The plaintiff served a notice for the examination of the defendant before trial by its president and agent, enumerating eleven subjects upon which she desired to examine the defendant, six having to do with the defendant's negligence, and the remaining five with the plaintiff's actions and the consequences thereof at the time in question, in regard to which obviously the persons sought to be examined could have no knowledge. The learned Special Term, in its opinion rendered upon the denial of a motion to vacate the notice for examination, said: "I can conceive of no valid reason why examinations before trial should be less liberal in negligence than in contract cases, for example. * * * The new Practice Act seems to open the door still wider than heretofore for searching out the real facts before trial, and I do not think that litigants in negligence cases should be restricted in their full enjoyment of these privileges." The Court of Appeals in Herbage v. City of Utica ( 109 N.Y. 81), in construing the provisions of the Code of Civil Procedure, sections 870, 872 and 873, covering the subject of examinations before trial, said: "We are of opinion that a party litigant may, in the discretion of the judge to whom application is made, * * * have a general examination of his adversary as a witness in the cause, as well before as at the trial, and that it is not, as of course, to be limited to an affirmative cause of action, or an affirmative defense set forth in favor of the party desiring that examination. The order appealed from was so limited, not according to the discretion of the court, by which it might have been restrained, but because, as appears by the order, the court was of opinion that it had no power to order otherwise."
This court has frequently had before it the question of examination before trial in negligence cases, and in certain other actions for torts, and has consistently held that, except in unusual circumstances, as a matter of public policy, in the exercise of its judicial discretion, a general examination before trial would not be allowed. Wood v. Hoffman Co. ( 121 App. Div. 636) was an appeal from an order for the examination of the plaintiff before trial in a negligence case. We said: "It is quite improbable that a defendant in a negligence action could in good faith say that he intended to use the deposition of the plaintiff upon the trial of the action, or that such testimony was material and necessary for his defense. * * * A general rule permitting a defendant in a negligence action to examine the plaintiff before trial as to the general issues in the action might result in very grave abuse and in the manufacture of unconscionable defenses. While we do not say that under no circumstances can a defendant examine a plaintiff before trial in a negligence action, we do hold that in ordinary actions such an examination should not be permitted."
In Griffin v. Cunard Steamship Co., Ltd. ( 159 App. Div. 453) we said: "Upon considerations of sound public policy we have not allowed general examinations before trial in negligence cases." We said in Bruhl v. Nedwell ( 164 App. Div. 932): "Such examinations in negligence cases have consistently been refused by this court in this department." In Kessler v. North River Realty Co. ( 169 App. Div. 814) we modified an order providing for the examination as to all the issues in the action by limiting an examination to one specific matter. Preiss v. O'Donohue ( 173 App. Div. 121) was an appeal by the defendant from an order denying a motion to vacate an order for his examination before trial. The action was to recover damages for personal injury caused by the fall of a passenger elevator. Mr. Justice McLAUGHLIN, writing for this court, said: "The order appealed from requires the defendant to submit to an examination before trial of all the issues in the action, and also calls for the production of certain orders and papers. Unless unusual circumstances are presented, the examination of a party before trial is not permitted in a negligence case ( Wood v. Hoffman Co., 121 App. Div. 636; Griffin v. Cunard Steamship Co., Ltd., 159 id. 453), and for the reason that generally such an examination is sought, not for the purpose of establishing the plaintiff's cause of action or defendant's defense, but to ascertain what the adverse party can prove. This court has consistently adhered to the rule that a party, plaintiff or defendant, can examine his adversary before trial only for the purpose of proving facts necessary to the examining party's affirmative case or defense, and not for the purpose of disproving facts which the adversary must prove in order to succeed." But inasmuch as that case involved the falling of a passenger elevator, as to the causes of which the plaintiff could not possibly be informed, the examination was allowed to the extent of showing the defendant's knowledge as to the car being out of repair at and immediately prior to the time the accident occurred.
In Kelsey v. Hevenor ( 188 App. Div. 967) an examination of the record on appeal on file in this court shows that the action was for damages for personal injuries received by plaintiff while a passenger in an automobile owned and driven by the defendant, by reason of a collision with a post, alleged to be caused by the defendant's negligence. We reversed an order denying the motion to set aside an order for the examination of defendant before trial and granted said motion.
We have allowed specific or limited examinations when ownership or control has been denied. The power to permit a general examination undoubtedly exists, but the matured judgment of the court is that it should not ordinarily be exercised in this class of cases. No new situation has resulted from the passage of the Civil Practice Act and the adoption of the new Rules of Civil Practice. The methods for obtaining an examination have been simplified by eliminating the necessity for one order and substituting a notice in its stead (Civ. Prac. Act, § 290 et seq.; Rules Civ. Prac. rule 121 et seq.), but rule 124 of the Rules of Civil Practice, providing for a motion to vacate a notice to take testimony, expressly provides: "If the court or judge who hears the motion shall deem that the testimony sought to be taken is not material or necessary for the party who served the notice, or for any reason that the interests of justice would not be subserved by such examination, an order may be made vacating and setting aside the notice to take the testimony or limiting the scope of the examination." This rule is in entire harmony with the practice heretofore obtaining in this department.
The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion to vacate granted, with ten dollars costs.
LAUGHLIN, DOWLING, SMITH and GREENBAUM, JJ., concur.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.