Golin v. Town of Mooers

Learned, P. J. This cause is not at issue, no answer having been served. The defendant desires to examine the plaintiffs as to the facts and circumstances relating to the accident, the location of the bridge, the part that was defective, the parts 'of the machine which were broken, the names of the persons with whom plaintiffs had contracts, the names of the persons present at the accident. It is plain that such an examination is not needed to enable defendant to answer. A general denial would put these matters in issue. If the defendant needs something in the nature of a bill of particulars, this is not the way to obtain it. The object of the examination is plainly to find out what plaintiffs will testify to on the trial, so that defendant may.the better meet the plaintiffs’ evidence.—a kind of examination which has been called “a fishing excursion. ” In Fogg v. Fisk, 30 Hun, 61, cited by defendant, it was pointed out that the affidavits showed that the party making the application desired to “obtain evidence in support of his own case.” In that respect the court said that the case differed from Chapin v. Thompson, 16 Hun, 53; Beach v. Mayor, etc., 4 Abb. N. C. 236. In Ball v. Publishing Co., 5 N. Y. St. Rep. 230, also cited by defendant, the affidavit showed that defendant needed the evidence of plaintiff “to prove the allegations contained in its answer.” In the present case there is no answer, and the defendant seeks to examine plaintiffs as to the facts of their cause of action. How, the case of Beach v. Mayor, etc., above cited, is strikingly like the present. The plaintiff claimed to have been injured by the dangerous condition of a street over which he was driving, and the defendant wished to examine him as to the facts and circumstances,—among other things, as to the names of bystanders. The court said that the object of the application was to force the plaintiff, by an examination, to furnish to the defendants the information necessary to enable them to look up witnesses to be used against him. That is this case. The same view was taken by this court in Chapin v. Thompson, 16 Hun, 53, and in Weston v. Reich, 48 Hun, 320, 1 N. Y. Supp. 412. So, also, is Gilbert v. Railroad Co., 49 N. Y. Super. Ct. 129. We are satisfied that on principle and on repeated decisions this order for examination should not stand. Order appealed from reversed, with $10 costs and printing disbursements; and motion to vacate order for examination granted, with $10 costs.