Croce v. Pennsylvania Greyhound Lines, Inc. , 24 N.Y.S.2d 581 ( 1940 )

Hallinan, J.

The defendant seeks to vacate or modify the order of this court dated November 14, 1940, which directed an examination before trial of its agent, servant and employee, George Rogers, upon the ground that the latter is no longer in its employ. Concededly, he was still in the defendant’s employ on October 21, 1940, when the motion came on for argument. It is claimed that a week later, “ due to the season of the year and the attendant slackening of defendant’s carriage of passengers, * * * Rogers * * * took a three months leave of absence.”

Under all the circumstances, the court is of the opinion that the defendant is not entitled to the relief sought herein. The decision of the court granting the examination was based upon the facts as they existed at the time the motion was heard and submitted to the court. To permit subsequent events to affect the determination would facilitate the thwarting of examinations of this character' merely by dispensing with the services of an employee, or, as in this case, giving him a so-called leave of absence. Moreover, under the circumstances present here, the defendant still has a measure of control over the employee. The affidavit in support of the application states “ that it is the custom of bus drivers to take such furloughs * * * instead of resigning so that their seniority rights will not be lost.” (Italics supplied.)

Accordingly, the motion is in all respects denied.

Submit order fixing the time of examination for January 3, 1941.