Di Laura v. State

The order for examination and production was granted pursuant to the provisions of subdivision 2 of section 17 of the Court of Claims Act and section 296 of the Civil Practice Act. While section 296 of the Civil Practice Act may be held to implement section 17 of the Court of Claims Act (Buchalter v. State of New York, 172 Misc. 420; Dunbar & Sullivan Dredging Co. v. State of New York, 174 Misc. 743), there is no statutory authority by which the claimant may avail himself of the provisions of section 324 of the Civil Practice Act. In this case it is sought to examine certain State officers and employees in reference to borings, photographs and map which were made more than a year after the claim was filed and which were made by the State in preparation for trial. The order of examination requires production of the stone acquired by the borings, together with the map and photographs. It is apparent that the claimant is seeking to ascertain in advance of trial, the results of the State’s investigation through its experts made in preparation for trial. There is no authority for such examination. Moreover, it does not appear that the examination is necessary to enable the claimant to properly prepare for trial or present his claim to the court.

All concur. Present — -Taylor, P. J., McCurn, Vaughan, Kimball and Piper, JJ.

Order reversed on the law, without costs of this appeal to either party, and motion denied, without costs.