Preiss v. O'Donohue

McLaughlin, J.: Action is brought to recover damages for personal injuries alleged to have been sustained by the plaintiff by the fall of a passenger elevator, the operation of which was controlled by defendant. The complaint alleges, among other things, that the defendant was in possession of the building and control of the elevator. The answer admits such allegations of the complaint, but denies that the defendant in his individual capacity was in such possession and control. Such denial, of course, must be read in connection with his admission that his possession was that of receiver and not in his individual capacity. As indicated, it was a passenger elevator, and at the time of plaintiff’s alleged injuries she was a passenger therein. 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; in other words, it must appear that the testimony sought to be obtained by the examination is necessary and material for the use of the party seeking to obtain it in proving [123] some fact which he must establish. (Kessler v. North River Realty Co., 169 App. Div. 814; Oakes v. Star Co., 119 id. 358.) Applying this rule, it at once becomes apparent that the plaintiff is not entitled to examine defendant for the purpose of showing that he is receiver and in control of the elevator, for such facts are admitted by the answer, and for a similar reason the production of judicial orders appointing him receiver is unnecessary. The examination, however, was properly ordered 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. It may he, the car being one for the purpose of conveying passengers, that the doctrine of res ipsa loquitur applies, and that the plaintiff would prove a prima facie case by establishing its fall. (Griffen v. Manice, 166 N. Y. 188.) But that doctrine is only a rule of evidence and the plaintiff, in making out her case, is not obliged to rely upon it. She may go further and show that the car was out of repair and that defendant knew it. The order appealed from, therefore, is modified and the examination permitted to the extent indicated, and as thus modified affirmed, without costs to either party. Clarke, P. J., Laughlin, Smith and Page, JJ., concurred. Order modified as stated in opinion and as modified affirmed, without costs. Order to be settled on notice.