West v. Coney Island & Brooklyn Railroad

Levy, J. Defendant makes this application to vacate a notice of examination of its motorman. The main objection urged which need be considered here is that the witness thus sought to be examined is not of managerial dignity, but merely an ordinary employee whose examination can be sustained only on proof of special circumstances requiring the same. The chief object of the examination is to prove the defective condition of the brakes and appliances. The person to be examined is the motorman who operated the car and who, for all practical purposes, may be regarded as the agent of the corporation most familiar with the condition of the brakes. As the plaintiff is entitled to an examination as to the lack of repair of the car (Preiss v. O’Donohue, 173 App. Div. 121), he should likewise be permitted to examine the particular employee of the defendant most familiar with the condition of the alleged defective appliance. The case of Lovasz v. Fowler (209 App. Div. 169) I do not consider applicable, because there an examination was sought of witnesses not shown to be in the employ of the defendant. The motion to vacate is denied. Settle order, in which provision may be made authorizing the examination to proceed.