Opinion
January 26, 1948.
In this action to recover damages for wrongful death, caused by the alleged negligence of defendants in directing decedent to a place of danger, as the result of which he was burned to death, plaintiff appeals from so much of an order granting an examination of defendants before trial as denies item 6 of the notice of motion for such examination. Order modified on the law and the facts by granting an examination as to item 6 of the notice of motion. As so modified, the order is affirmed, with $10 costs and disbursements to appellant, the examination to proceed on five days' notice. The denial of the item granted by this determination was an improvident exercise of discretion. ( Fried v. Garden State Tanning, Inc., 272 App. Div. 939; Royce v. Ziegfeld, 224 App. Div. 651; Foley v. Long Island R.R. Co., 242 App. Div. 780.) Lewis, P.J., Carswell, Johnston, Adel and Wenzel, JJ., concur.