Vasquez v. East River Day Camp, Inc. , 17 Misc. 2d 385 ( 1959 )

Aron Steuer, J.

Motion to examine defendant in order to frame a complaint. The affidavits show that defendant operates a day camp; that the infant plaintiff, a child eight years of age, fell while in the custody of defendant’s servants and that the child does not know the location of the place where she fell. There is no claim that the child is ignorant of the manner in which she fell and the other circumstances. These would be sufficient to frame a complaint.

Plaintiff also alleges that defendant is under a duty to disclose the facts because plaintiff makes out a prima facie case by showing delivery to defendant in a sound condition and return in a damaged condition. If this theory based on apparent similarity of legal relationship of a child to merchandise entrusted to a bailee could be considered sound it would be even simpler to draw a complaint.

The real reason for this application is that plaintiff’s attorney suspects that there may be a cause of action against the city and wants the information to start such an action. The purpose may be legitimate but there is no provision in our law for examing a defendant in order to get information which may result in a cause of action against a third party.

Motion denied.