Opinion
September, 1909.
Herbert N. Warbasse, for plaintiff and motion.
Eidlitz Hulse, opposed.
The order in question requires the defendant's president and the defendant's secretary to appear for examination with reference to the issues raised by the answer, and especially with reference to the identity of the defendant "as the negligent tort feasor herein." The order does not purport to require the company to be examined, but it is directed against its officers individually. It is well settled that there is no authority for the examination of an officer of a corporation as such, apart from the examination of the corporation itself. Jacobs v. Mexican Sugar Refining Co., 112 A.D. 657; Shumaker v. Doubleday, Page Co., 116 id. 302. As was said by the court in Jacobs v. Mexican Sugar Refining Co., supra, 658: "The proper practice in such a case is to authorize the examination of the party, and then, the party being a corporation, the order should provide that the information is to be elicited by an examination of certain of its officers." As this was not done in the present case, the motion to vacate the order must be granted.
Motion granted, with ten dollars costs.