Opinion
February 18, 1910.
Arthur J. Levine, for the appellant.
Earle W. Webb, for the respondents.
The action is for personal injuries sustained by the plaintiff while attempting to alight from an elevator located in the defendants' building and operated by them. It is alleged that the elevator suddenly started, precipitating the plaintiff down the shaft and that that was due to the negligence of the defendants "and the negligent and defective equipment, construction and operation of the said elevator and its shaft and the equipments, appliances and appurtenances thereof." The plaintiff desires to examine the defendants' employee who was running the elevator, and the "special circumstances" (Code Civ. Proc. § 872, subd. 5) upon which he relies to justify the examination are the following, viz., that the plaintiff was injured on the defendants' premises by the sudden starting of an elevator controlled and operated by them and can prove the cause of the accident only by the witness sought to be examined, who is in the defendants' employ; that upon the defendants' motion the plaintiff has been required to furnish a bill of particulars stating "in what respect the elevator was defectively equipped, constructed and operated, specifying each and every defect that the plaintiff expects to prove upon the trial of this action," and that he cannot comply with said order unless permitted to examine said witness.
It is possible that, by proving the occurrence and the attending circumstances the plaintiff could put the burden of explaining the accident upon the defendants. ( Griffen v. Manice, 166 N.Y. 188.) At any rate, he should not have been required to furnish the particulars specified. If the defendants insist upon the plaintiff furnishing specifications, they should, at least afford him the means of ascertaining them which they possess, otherwise he will be precluded from giving evidence upon the trial of specific defects. Courts sit to accomplish justice, not to rule upon the points of a game of sharp tactics. A recent decision of the court in this department is controlling. ( Chittenden v. San Domingo Improvement Co., 132 App. Div. 169. ) If the defendants do not wish to have the witness examined let them waive the giving of a bill of particular by the plaintiff. It should be said that orders for the examination of a witness, not a party, sought upon the ground of special circumstances, should be sparingly granted and then only where it appears to be necessary to prevent a failure of justice.
The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
INGRAHAM, P.J., LAUGHLIN, CLARKE and SCOTT, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.