Opinion
January, 1935.
In an action to recover for damage to plaintiff's automobile, alleged to have been caused by the negligent operation of defendant's car, order of the City Court of White Plains denying motion to vacate the notice of examination before trial as to the driver of the car and to limit or modify the notice as to the examination of defendant's vice-president reversed on the law, without costs, and motion granted to the extent of limiting the examination of the driver, Threshie, to items 1, 2 and 3 of the notice of examination; by limiting his examination as to item 3 to admissions or statements made by him at the time and place of the accident and forming a part of the res gestae by striking out the provision for the examination of defendant's vice-president as to items 1, 2 and 3, and by striking out item 4. The fourth item is an improper subject of examination; and as to the third item, admissions concerning the accident, made by the chauffeur to a third party, would not be admissible as against the defendant unless they formed a part of the res gestae. The examination may proceed on five days' notice. Lazansky, P.J., Young, Carswell and Tompkins, JJ., concur; Hagarty, J., dissents from that part of the decision which directs that the examination be held as to the second item and as to the third item as herein limited, but concurs with the decision in all other respects.