Opinion
October 16, 1961
In an action under article 15 of the Real Property Law, to compel the determination of claims to certain real property, to wit: the waters of Lake Tiorati in Bear Mountain Harriman State Park, the parties appeal as follows from two orders of the Supreme Court, Westchester County, both dated May 1, 1961, one of which grants in part plaintiff's motion to make a survey of said lake, pursuant to section 982 of the Civil Practice Act; and one of which grants in part plaintiff's motion to examine defendant before trial, pursuant to section 292-a of the Civil Practice Act: (1) Defendant appeals from so much of the first order as grants permission to plaintiff to enter upon the lake and to survey its surface and subsurface, including the dam and its outlet. (2) Defendant appeals from so much of the second order as requires it to appear for examination and to produce its books and papers for use upon such examination. (3) Plaintiff cross-appeals, as limited by its brief, from so much of the second order as denies its examination of the defendant with respect to certain items enumerated in plaintiff's moving papers. Both orders, insofar as appealed from, affirmed, without costs. The examination shall proceed on 20 days' notice or on any other date mutually fixed by counsel. In our opinion, defendant is included, by definition, within the category of public corporations (General Corporation Law, § 2) and, therefore, is subject to examination before trial pursuant to section 292-a of the Civil Practice Act (cf. Ramapo Mountains Water, Power Serv. Co. v. Commissioners of Palisades Interstate Park, 177 App. Div. 700; Kirkman v. Commissioners of Palisades Interstate Park, 200 A D 870). Our decision in Conklin v. Palisades Interstate Park Comm. ( 282 App. Div. 728) is not to the contrary. There it was held that the County Court had no jurisdiction of a tort claim against the commission. In the case at bar there is no question as to the Supreme Court's jurisdiction of the person of the defendant or the subject of this action. Defendant is also amenable to the provisions of section 982 of the Civil Practice Act, authorizing a survey to be made in an action relating to real property if the court is satisfied that a survey "is necessary or expedient." Both the granting of the survey and the pretrial examination and their scope are within the discretion of Special Term. Under the circumstances here we find no reason to interfere with its exercise of such discretion. Beldock, Acting P.J., Kleinfeld, Christ, Pette and Brennan, JJ., concur.