Opinion
September 25, 1945.
Eugene Eisenmann for plaintiffs.
Lawrence Eichner for defendants.
Plaintiff moves to examine defendant before trial in an action for damages resulting from injuries sustained when plaintiff came into contact with an automobile. As a general rule an examination in this type of case is not permitted unless special circumstances are shown. The court believes that plaintiff, who is a guardian ad litem of the infant who was injured, has demonstrated the existence of special circumstances requiring a relaxation of the rule. Briefly, those circumstances are that the adult plaintiff has no personal knowledge of the accident, that the infant was only seven years of age at the time of the accident and was rendered unconscious as a result thereof, and finally that plaintiff has been unable to obtain any other witnesses to the accident. Examinations have been granted where some of these conditions have existed. ( Pierce v. Morris, 192 A.D. 502; Hollander v. Brown, 233 A.D. 831; Massaad v. Stevens, 240 A.D. 1033; Kematjian v. Island Cab Co., 244 A.D. 704.) The motion for an examination is granted. Let the examination proceed at Special Term, Part II, of this court on October 11, 1945, at 11:00 A.M. of that day. The time for plaintiff to serve a bill of particulars pursuant to a demand served by defendant is extended until ten days after completion of the examination ordered herein.