Thorne v. Jersey Insurance

-Appeal from an order of Special Term entered in the Albany County clerk’s office on November 9, 1942, granting defendant’s motion to examine a witness before trial. The action is based on a collision insurance policy. Plaintiff claims that his automobile, which was being driven by his brother, came in contact with a defect and obstruction on a public highway and was wrecked. By the motion defendant sought to examine the driver before trial. The unusual circumstances, which are necessary for such examination under the statute, were claimed to lie in the fact that the automobile was wrecked by contact with a defect and obstruction on the public highway. The answering affidavit alleged that the defendant had been furnished with all the information at plaintiff’s command and with a complete report of the accident, and that the driver had been at the scene of the accident with the representative of defendant and made a fuE disclosure in regard thereto. The facts do not constitute the unusual circumstances required by the statute for the' examination of such a witness before trial. Order reversed on the law and facts, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. All concur.