Fletcher v. Giovanna

Order granting motion of plaintiff and directing examination before trial of defendant, by his superintendent, modified on the law by striking out the second and third ordering paragraphs and by providing in lieu thereof that the motion of plaintiff for such examination be denied. As so modified, the order, insofar as appealed from, is affirmed, with $10 costs and disbursements to appellant. It was error to direct the examination of defendant by his superintendent as an enforcement of a notice of examination which stated that the superintendent was to be examined as an adverse party. (See Verdi v. Nocenti Co., 177 App. Div. 489.) Consent by defendant to adjournment and his failure to move to vacate or modify it did not operate to change the character of the examination of Fletcher set forth in the notice. (See Nixon v. Beacon Transportation Corp., 239 App. Div. 830.) Considering plaintiff’s motion as an application pursuant to section 292 of the Civil Practice Act for an order to examine defendant by his superintendent, it must be denied for the reason that the examination of “ any other party ” who is an individual, contemplated by section 288 of the Civil Practice Act, “ means just what it says; it means that the party himself must be interrogated * * (Pardee v. Mutual Benefit Life Ins. Co., 238 App. Div. 294, 297.) Hagarty, Acting P. J., Carswell, Johnston, Adel and Lewis, JJ., concur.