Berg v. William Horne Co.

On the 31st day of March, 1911, Mr. Justice Crane made an order, ex parte, requiring the examination of the defendant as *413an adverse party before trial: The action is brought to recover damages for personal injuries, and one of the defenses is that the work was being done by an independent contractor, and not by the appellant. The object of the examination is to prepare the plaintiff’s case for trial, and to obtain evidence for that purpose in support of the cause of action, and in avoidance of this special defense. The object appears to have been held to be legitimate in Schweinburg v. Altman (131 App. Div. 795). The appellant obtained an order to show cause why the order requiring the examination should not be set aside, and the order appealed from denying that motion was made by Mr. Justice Blackmar.

The appellant asks that the order be reversed, but the affidavit on which the order to show cause was granted stated that the object sought was to obtain an order limiting the examination to the single question as to what work was being performed at the time by the appellant. We do not think the order for the examination should be limited to that single question, and recommend that the order be affirmed, with "ten dollars costs and disbursements.

■ Jenks, P. J., Hirschberg, Burr, Thomas and Bich, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.