Stiles v. Davis , 38 N.Y.S.2d 579 ( 1942 )

We think that defendant is entitled to examine plaintiff as an adverse party before trial on the authority of Brand v. Butts (242 App. Div. 149) and Breault v. Embossing Co. Inc. (253 App. Div. 175), on the following matters: (1) under what circumstances did plaintiff become a passenger in defendant’s ear. (2) what, if anything, plaintiff observed as to the operation of the automobile by defendant immediately before and at the time of the accident. (3) what knowledge, if any, plaintiff had prior to the accident as to the mechanical condition of the ear. (4) what precautions, if any, were taken by plaintiff to avoid the accident. Order appealed from reversed, on the law and facts, without costs and the motion to vacate the notice of such examination denied, without costs. Plaintiff is directed to appear for examination before the justice presiding at the Broome Trial and Special Term to be held on January 11, 1943, at the opening of the court on that day or at such other time and place as the presiding justice may direct. Hill, P. J., Bliss and Heffernan, JJ., concur; Sehenck and Poster, JJ., dissent on the ground that the order was discretionary and no abuse of discretion has been shown.