Opinion
October 18, 1948.
In a negligence action, order denying motion of plaintiff for examination of defendant for the purpose of identifying one or more other proper defendants, reversed on the law and the facts, with $10 costs and disbursements, and the motion granted, with $10 costs, the examination to proceed on five days' notice. Assuming that the pertinent provisions of the Code of Civil Procedure (§ 870 et seq.) precluded examination before commencement of the action for a purpose other than perpetuating testimony (contra Matter of Weil, 25 App. Div. 173 ), present section 295 of the Civil Practice Act warrants examination for the purpose of identifying a party where, at least, a meritorious cause is shown, as an incident to the protection of the rights of the expected party in the prosecution of the action. ( Lauffer v. Eastern Star Temple, 210 App. Div. 619, 621, 622; Matter of Strope [ Albany Steel Iron Supply Co.], 263 App. Div. 765; Matter of Weil, supra.) Rule 122 of the Rules of Civil Practice furthermore may be read in conjunction with section 295 of the Civil Practice Act. That rule contemplates an application to take depositions to draw a complaint under any provision of article 29 of the Civil Practice Act. The term "party", as used in the rule, includes one who is about to commence an action. Carswell, Acting P.J., Johnston, Adel, Nolan and Wenzel, JJ., concur.