Opinion
January 29, 1937.
In an action for negligence and breach of warranty, order denying motion to compel the plaintiffs to produce and discover and to give the defendant an inspection and permission to make photographs of a pair of eye-glasses alleged by the defendant in its affirmative defense to have highly inflammable rims and to be the cause of the accident, reversed on the law, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. In our opinion, the defendant, under the more liberal practice now approved, is entitled to the relief sought. The burden of establishing contributory negligence rests upon the defendant. If the eye-glass frames were composed of highly inflammable material as claimed by the defendant, and the fire originated with such frames rather than with the combs as claimed by the plaintiffs, the defendant should have an opportunity to present such facts to the jury. Without inspection and photographing, it will be unable to do so. ( Treacy v. Woolworth Co., 248 App. Div. 640, 641; Reiss v. Kirkman Son, Inc., 242 id. 77.) Lazansky, P.J., Johnston, Adel and Close, JJ., concur; Carswell, J., not voting. Settle order on notice.