Wallace v. Syracuse, Binghamton & New York Railroad , 30 A.D. 186 ( 1898 )

Landon, J.:

The action is to recover upon account of injuries which the plaintiff alleges-he received while a passenger upon defendant’s cars. The pleadings present the issue whether the plaintiff was a passen-' ger upon defendant’s train of cars at the time of his alleged injuries. The Delaware, Lackawanna and Western Railroad Company also runs its trains over the defendant’s tracks, and the plaintiff’s affidavits show that he needs the testimony of the officers of the defendant to prove that the train he was upon was the defendant’s. Thus the examination sought is practically that of the corporation defendant. (Davies v. Lincoln Nat. Bank, 19 N. Y. St. Repr. 905.) It is probable that exact knowledge whether the train was the defendant’s is confined to the officers of the companies. It is objected that these officers can be examined upon the trial, That objection sometimes has weight, but we do not think it is fatal in this case. The business of both corporations is affected by the public use, and we think it was a proper exercise of discretion for the Special Term, in. the interest of a passenger who was in the enjoyment of his right to such use, to examine before trial the officers of the defendant, in order to enable him to prove, if such was the fact, that the train was either the defendant’s, or under its control. Further than this the examination is not necessary.

The order should be modified by granting examination as to the four particulars last specified in plaintiff’s affidavit, and as thus modified affirmed, without costs.

All concurred.

Order modified by granting examination as to the four particulars last mentioned in plaintiff’s affidavit, and as thus modified affirmed, without costs.