Opinion
March, 1936.
Present — Hill, P.J., Rhodes, McNamee, Crapser and Heffernan, JJ.
The action is in negligence. Plaintiff is seeking to recover damages for the alleged wrongful death of plaintiff's intestate said to have been caused by the explosion of gasoline purchased from defendant Whiteside Buell. Plaintiff applied to the Special Term of the Supreme Court for (1) an order to examine defendant Whiteside before trial for the purpose of attempting to show that defendants were negligent; (2) for an order to strike out the defense of the Statute of Limitations; (3) for an order requiring defendants to serve a bill of particulars as to their affirmative defense of contributory negligence. The court below denied the application. The issues raised should be litigated on the trial of the cause. Order unanimously affirmed, with ten dollars costs and disbursements.