Boyle v. Municipal Gas Co.

Rudd, J. Each defendant moves for an order vacating an order heretofore granted permitting the examination of each defendant by the respective general managers under the provisions of section 872 of the Code. The action has been commenced. . The complaint is not served. The affidavit upon which the order for examination was granted states that the plaintiff has a cause of action against each defendant, setting forth somewhat in detail" the relation which each defendant bears to the conditions which it is alleged caused the accident out of which this action arises. The affidavit of plaintiff further sets forth as to the [580] alleged cause of action “that it is material and necessary for this deponent * * * to examine the officers of the * * * defendants * # # for the purpose of ascertaining which of said corporations was negligent and careless in the maintaining, operating and conducting of its electrical system * * * so that this deponent may prosecute this action against the corporation responsible for his damage and prepare deponent’s complaint setting forth the true facts with reference to said cause of action.” The affidavit further alleges “ that this action is pending to recover damages for personal injuries sustained by deponent on the grounds of the negligence of one or the other or of both of said defendants It thus clearly seems that while plaintiff alleges a cause of action against each defendant the plaintiff, because of the lack of knowledge as to the respective ownership of the equipment and as to the exact cause of the accident, is unable to allege the cause of the accident. If he is unable to allege the cause of the accident he is not able to allege that he has a cause of action against either of the defendants named. The defendants move for the vacating of the order on the ground that plaintiff has not alleged a cause of action, that at best the allegation is but tentative. Examination will not be permitted in order that plaintiff may determine whether he has a cause of action, and it will not be granted if it appears that plaintiff can frame his complaint without it. It has been held that an examination will not be granted to enable a plaintiff to ascertain which of two parties was the one liable for personal injuries. Matter of Schoeller, 74 App. Div. 347. Justice Herrick in Matter of Nolan, 70 Hun, 536, states what seems to be the correct rule, namely that [581] an examination can be had for the purpose of ascertaining who are the proper defendants, by determining, as.in that case, who are the owners and operators of certain machinery or devices, the operation of which it is alleged caused the accident. Such an order could not be said to be used for fishing purposes. As was determined in Glenney v. Stedwell, 64 N. Y. 120, a plaintiff in an action pending may examine the adverse party before service of the complaint for the purpose of obtaining facts on which to frame the complaint. The plaintiff in his memorandum filed in this action asks “ that the parties named (the defendants) be examined so that he (the plaintiff) may ascertain the ownership of the wires, etc., and the exact cause of the accident in order to enable him to allege the negligence which caused the accident.” This statement is justified by the allegations of the affidavit upon which the order under review was granted and clearly indicates that the order violates the rule controlling us. An examination of defendants with a view of endeavoring to ascertain what caused the accident is in reality an effort, by the examination of an adverse party, to learn whether the plaintiff has a cause of action and if so against whom.. Equity requires and justice demands that under the law examinations should be had of those who are possessed of information which will enable a plaintiff to more definitely and clearly set forth a cause of action, thus avoiding unnecessary joining of parties and uncertainty of issues, but, for the reason that the order goes beyond what has been determined to be the right of the plaintiff, the order must be vacated. If the order provided for the examination of defendants as to ownership of equipment in the opinion of [582] the court it should stand, but having no power to modify, only to sustain or vacate, an order must be entered vacating the order granted July 11, 1916, without costs. Ordered accordingly.