Opinion
December 29, 1942.
Appeal from Supreme Court.
Plaintiff was a passenger in an automobile owned and driven by defendant on March 15, 1942. Defendant was also accompanied by his wife and two daughters. The car skidded and left the highway striking a nearby tree with the result that plaintiff was injured. No other car was involved in the accident. Plaintiff brought this action to recover damages on the theory that defendant negligently operated the machine and that the car was mechanically defective. In the affidavits and in appellant's brief it is said that he is insured and that he is co-operating with the insurance company. Respondent and appellant's daughters refused to discuss the accident with the insurance company's adjuster. Defendant gave plaintiff's attorneys notice that it would examine plaintiff as an adverse party before trial. The Special Term vacated the notice. We think that defendant is entitled to examine plaintiff as an adverse party before trial on the authority of Brand v. Butts ( 242 App. Div. 149) and Breault v. Embossing Co. Inc. ( 253 App. Div. 175), on the following matters: (1) under what circumstances did plaintiff become a passenger in defendant's car. (2) what, if anything, plaintiff observed as to the operation of the automobile by defendant immediately before and at the time of the accident. (3) what knowledge, if any, plaintiff had prior to the accident as to the mechanical condition of the car. (4) what precautions, if any, were taken by plaintiff to avoid the accident. Order appealed from reversed, on the law and facts, without costs and the motion to vacate the notice of such examination denied, without costs. Plaintiff is directed to appear for examination before the justice presiding at the Broome Trial and Special Term to be held on January 11, 1943, at the opening of the court on that day or at such other time and place as the presiding justice may direct. Hill, P.J., Bliss and Heffernan, JJ., concur; Schenck and Foster, JJ., dissent on the ground that the order was discretionary and no abuse of discretion has been shown.