Shweky v. Goldberg ( 1933 )

Order, in so far as it grants plaintiffs’ motion for an examination of defendants before trial as to item numbered 1 in the notice of motion, affirmed. In so far as it grants the motion as to item numbered 2, as modified, and denies the motion as to items numbered 3 to 7, inclusive, the order is reversed on the law and the facts, with ten dollars costs and disbursements, and the motion granted to the extent of allowing the examination as to items numbered 2 to 7, inclusive, in the notice of motion, without costs. The examination is to proceed on five days’ notice. The examination sought by the plaintiffs under these items, under settled authority in this department, was improperly denied to them. Lazansky, P. J., Young, Kapper and Carswell, JJ., concur; Davis, J., concurs on the ground that in this case, where an infant of tender years, unable to testify, is plaintiff, a more liberal rule for examination should be applied; but that ordinarily the Special Term has discretion to limit the scope of an examination to subjects which are distinctly material and necessary to plaintiff’s proof on the trial, eliminating such parts as are obviously included in bad faith and for the purpose only of discovering what proof defendant will eventually offer.