Summary
In Bolognino v. Anheuser-Busch (279 App. Div. 819) the Appellate Division of the Third Judicial Department considered the examination of a nonresident defendant.
Summary of this case from Fitzgerald v. PrimmerOpinion
January 9, 1952.
Appeal from Supreme Court, Albany County.
It is alleged that the plaintiff wife was injured in a public restaurant by the explosion of a bottle of beer, which was the product of the Anheuser-Busch Company and distributed by the Hoy concern of Albany, New York. There are allegations that the bottle in question was improperly manufactured, filled, inspected and handled, so that it became a dangerous instrumentality. The main plant of the Anheuser-Busch Company is at St. Louis, Missouri, and its brewmaster lives there. Plaintiffs seek to examine the latter as to the methods by which the defendant Anheuser-Busch manufactures and inspects its bottled beer. We regard the subject matter of the proposed examination as proper, but to require an examination of the brewmaster in this jurisdiction will manifestly impose a considerable hardship on this defendant. Under the circumstances it seems a better exercise of discretion to have such examination conducted through the medium of interrogatories or an open commission in the jurisdiction where the brewmaster resides, with the expenses thereof, except as to counsel fees, to be borne by the defendant Anheuser-Busch company ( Meinig Co. v. United States Fastener Co., 194 App. Div. 397, 399). The order directed to this defendant is modified, on the law and the facts, by reversing that part thereof which directs the examination of this defendant's brewmaster in this jurisdiction, and in the exercise of our discretion it is directed that the proposed examination be had at St. Louis, Missouri, through the medium of interrogatories or an open commission, at the option of plaintiffs, with the expense thereof, except as to counsel fees, to be borne by this defendant; and as so modified affirmed, without costs. The order directed against the defendant Joseph J. Hoy, Jr., Inc., is affirmed, with $10 costs and disbursements, and the time and place of such examination may be fixed in the order of affirmance herein. Foster, P.J., Heffernan, Brewster, Bergan and Coon, JJ., concur.