Beyer v. Transit Development Co.

Burr, J.: Plaintiff, a servant of defendant, alleges that the injuries which lie sustained on July 25, 1908, resulted from escaping steam, due to the bursting of a tube connected with a boiler on defendant’s premises. ' He charges that defendant failed to provide him with a safe place wherein and safe appliances with which to work, and failed to use reasonable care to keep such place and appliances in safe condition. After issue joined, he caused a notice to-be served on defendant, demanding permission to go upon the premises where he was injured for the purpose of obtaining a sample of the water used by defendant in filling its boilers, in order that an analysis might be made of it “ for the purpose of determining whether • or not the water used was proper for the purposes to which it was put by the defendant.” After refusal, plaintiff moved for an order compelling compliance with such request. The motion was based upon the complaint, a petition of plaintiff, and an affidavit of his attorney. Defendant submitted no papers in opposition. From the motion papers it appears that the water used by defendant in its boilers, on the date of the accident, was obtained from driven "wells upon its premises; that after defendant began to use [726] this water instead of water from the city mains.there was a “heavy deposit of some whitish-colored substance”, in the boilers, which interfered with the free circulation of wáter in the tubes of the boilers, and that a number of explosions followed. It is also claimed that-.some deposits of similar appearance have no'Injurious effect, while others are dangerous because, they render the tubes tender and liable to burst, and that, a- chemical analysis of the water used is .necessary to determine - the exact character of such ' deposit. From the order denying such application this appeal is'taken. Prior to September 1, 1909, discovery was limited to books, documents or other papers (Code Civ. Proc. § 803), and this notwithstanding that the General Buies of Practice (Bule 14) attempted to extend such discovery to ■“ articles or property.” (Auerbach v. Del., L. & W. R. R. Co., 66 App. Div. 201; Cooke v. LaLance Grojean Mfg. Co., 29 Hun, 641.) By amendment of the above section, which took effect on the date named; the-futile provision of the rule became an effective part- of the statute, and the court may now grant discovery, not only of books, documents of other .papers, but also of any article or property in the possession of or under the control of a party relating to ■ the merits of the action or of the' defense therein. (Laws of 1909, chap. 173.) To entitle plaintiff to such order it is necessary for him to establish that the article or. property is material to the decision of the action, or is competent ■ evidence in the case, or an inspection thereof is necéssary to enable a party to prepare for trial. (General Buies of Practice,, rule 14.) That such discovery may be material if plaintiff’s theory of liability is established is not gainsaid; but defendant contends that the' evidence which may be elicited is not competent because an analysis of the water flowing from the wells at the present time is no criterion of the character and quality of the water which flowed therefrom in 1908. But there is no evidence that there has been any change, and the court certainly cannot take judicial notice that such is the case. It may be that upon the trial such a state of facts will be presented as to make the évidence here sought incompetent, but for anything that now appears It is competent, and may be material to the decision of the action. The order appealed from should be reversed, with, ten dollars costs and disbursements, and the motion for discovery granted, with [727] costs. The proceedings should be remitted to the Special Term to settle the form of the order granting such discovery. Hirsohberg, P. J., Woodward, Jenks and Thomas, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion for discovery granted,, with costs. Proceedings remitted to the Special Term to settle the form of the order granting such discovery. ■