Donoghue v. Callanan

Dowling, J.; This is an appeal from an order denying a motion for the ' production, discovery and inspection of a certain machine known as a “ fountain ” and used by the respondents in filling bottles as well as in testing thein to determine their fib ness for use. The action is brought to recover damages stistained by reason of the explosion of a.bottle containing seltzer water, furnished by respondents to their customers Kelly & McCreesh, the codefendants, and one of the averments of the complaint is as follows: “Ninth. That the said defendants William H. Callanan and Frank (or Francis) McDermott doing business under the name, of ‘ O. K. Bottling Company ’ as aforesaid, had, on or before [163] the said 27th day of July, 1909, through their agents and servants, so carelessly, negligently, ■ unskilfully, wrongfully and unlawfully filled and dangerously charged the said seltzer water bottle so furnished to and used in the said liquor saloon on said day, that the same exploded with great force and violence and portions thereof were then and there hurled with great force and violence against the plaintiff (who was lawfully in the said saloon on the said day) and thereby caused the aforesaid serious and permanent injuries to the plaintiff to his great • loss and damage as aforesaid.” In his affidavit in support of this motion the plaintiff shows that the defendant Callanan has been examined before trial and that it appears therefrom that the firm of Callanan & McDermott at the time of the accident used a machine known as a “ fountain” to fill and charge the bottles containing seltzer water and to test them before filling for distribution to their customers. This “ fountain ” is still in the possession of defendants, and it is the purpose of plaintiff to prove that it was improper and inadequate for the purpose for which it was used, and then to demonstrate that the explosion of the bottle was due to defects in the process of charging and filling. The present application is, therefore, made under section 803 of the Code of Civil Procedure, reading as follows: “ A court of record, other than a justices’ court in a city, has power to compel a party to an action pending therein, to produce and discover, or to, give to the other party, an inspection and copy, or permission to take a copy, of a book, document, or other paper, or to make discovery of any article or property, in his possession or under his control, relating to the merits of the action, or of the defense therein.” The words “orto make discovery of any article or property ” were inserted by chapter 173 of the Laws of 1909, and were added to enlarge the power of the court which theretofore had been limited to the discovery and inspection of a book, document or paper. (Pina Maya-Sisal Co. v. Squire Mfg. Co., 55 Misc. Rep. 325; Danahy v. Kellogg, 70 id. 25.) Since the new amendment took effect it has been held that an order was properly granted thereunder for the production and discovery of a laundry appliance called an “ extractor ” with all its parts, pieces and appliances, for an inspection thereof by [164] plaintiff,, and her attorney, accompanied by a photographer and two experts, and for the photographing of the machine or any of its parts. (Clery v. Clark, 140 App. Div. 934.) In Beyer v. Transit Development Co. (139 App. Div. 724) an order was affirmed under which plaintiff was allowed to go upon the premises occupied by defendant (where the accident occurred) to obtain 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 the water was proper for the purposes to which it was put by. defendant. Here it is apparent that the plaintiff cannot hope to establish these defendants’ liability,, predicated upon their negligence and unskillfulness in filling and charging the bottle in question, without an opportunity of inspecting the machine by which those operations were performed and which is still in their possession. The photographing thereof is a desirable and proper incident to the desired discovery. The order appealed from will, therefore, be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs. Scott and Miller, JJ., concurred; Ingraham, P. J., and McLaughlin, J., dissented.