Opinion
July 18, 1961
Leon C. Carlen for plaintiff.
Emanuel Morgenbesser for defendant.
This is a motion under section 324 of the Civil Practice Act for an order compelling the defendant to make discovery to plaintiff and allow him inspection of a chair in the possession and control of defendant by or through use of which the plaintiff was injured. Defendant's possession and control of the chair is not denied. The defendant urges that no discovery and inspection may be allowed without a prior examination before trial and a showing that necessity exists after such examination. Significantly, every case cited by it relates to books, papers, and records and related sources of information. The same rule is not necessarily applicable to an object such as a chair or other item of personal property to which section 296 of the Civil Practice Act (production of books and papers on examination before trial) is not applicable ( Dugan v. American Transfer Co., 160 App. Div. 11, 14, broken rope ends; Zalta v. Guaranty Trust Co., 249 App. Div. 640, linens, banquet cloths, etc.; Leone v. Lohmaier, 205 Misc. 467, blowtorch; Duncan v. Hammond, 20 Misc.2d 213, tractor; and cases cited in Duncan).
The plaintiff's motion is, therefore, granted and he may examine the chair and utilize the services of an expert in so doing and may also take photographs thereof.