Opinion
June, 1935.
Action by husband and wife to recover for personal injuries and loss of services as a result of the wife's being struck by an automobile at a street intersection. Order dated January 9, 1935, denying, on reargument, plaintiffs' motion for examination of defendants before trial reversed on the law and the facts, in so far as appealed from, with ten dollars costs and disbursements, and motion granted, without costs; the examination to proceed on five days' notice, at a time and place to be designated in the order. The examination sought concerns matters which plaintiffs will be obliged to prove upon the trial. Knowledge of these matters on the part of the plaintiffs is no bar to such an examination. ( Berger v. Day, 228 App. Div. 819.) Appeal from order of December 27, 1934, dismissed. Lazansky, P.J., Young, Carswell, Tompkins and Johnston, JJ., concur. Settle order on notice.