Gaylord v. B. T. Babbitt, Inc.

Defendant has appealed from an order directing its examination before trial as an adverse party and has also appealed from so much of the order as denies its request to compel plaintiff to reply to an affirmative defense of a release pending plaintiff’s examination. The action is brought by plaintiff as administratrix of her deceased husband in which it is alleged that defendant violated various provisions of the Labor Law as a result of which plaintiff’s husband contracted silicosis which caused his death. The matters upon which plaintiff seeks to examine defendant are necessary in order for plaintiff to establish her cause of action. The order appealed from is affirmed, with ten dollars costs and disbursements, on the authority of Brand v. Butts (242 App. Div. 149); Breault v. Embossing Company, Inc. (253 id. 175). The examination is directed to be held before the justice presiding at the Special Term to be held at the court house in the city of Albany on the fourth Friday of January, 1940, at the opening of court on that day and at such other times and places as the justice at such Special Term may direct and defendant by its officers named in the order appealed from is directed to attend before the justice presiding at the Special Term indicated and at such adjourned dates thereof as such justice may fix for examination before trial on the part of plaintiff pursuant to article 29 of the Civil Practice Act and the Rules of Civil Practice. Hill, P. J., Crapser, Bliss, Heffernan and Foster, JJ., concur.