Opinion
Action by Ivy Rejsenhoff, as administratrix of the estate of Edward Rejsenhoff, deceased, against the Colonial Navigation Company, for death of plaintiff's intestate while a member of the crew upon defendant's vessel, the S. S. Comet. The plaintiff moved to strike out a separate defense of plaintiff's incapacity to sue, and defendant countered with a motion for judgment on the pleadings, which was granted and the complaint dismissed with leave to amend within 30 days. On defendant's motion to vacate plaintiff's notice of taking depositions.
Motion granted.
Edward Kuntz, of New York City, for plaintiff.
Hatch & Wolfe, of New York City, for defendant.
HULBERT, District Judge.
Rule 26, Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, provides: ‘ By leave of Court after jurisdiction has been obtained over any defendant * * * or without such leave after an answer has been served, the testimony of any person, whether party or not, may be taken * * *.’
This action was commenced on or about January 30, 1940 and issue was joined by the service of the defendant's answer on June 21, 1940, which set up, as a separate defense, plaintiff's incapacity to sue. Plaintiff moved to strike out this defense and defendant countered with a motion for judgment on the pleadings, which was granted and the complaint dismissed, with leave to amend within 30 days.
No amended complaint has been served, but plaintiff has given notice of the taking of the deposition of C. C. Dunbaugh, the Treasurer of defendant and the Captain, Chief Engineer, second Assistant Engineer or any other employee upon defendant's vessel, the S. S. Comet, of whose crew plaintiff's intestate was a member and for whose death she seeks to recover damages. Whether the purpose of this examination is to enable plaintiff to ascertain information to enable her to frame an amended complaint does not appear. The status of the case is that an action is pending without pleadings and the examination of witnesses cannot be had without an order as required by Rule 26.
Motion granted. Submit order.
In view of defendant's motion to vacate plaintiff's notice of taking depositions and disposition thereof the interrogatories filed are premature and will be regarded as withdrawn.