Opinion
May 13, 1942.
Appeal by John E. Connolly and Nicholas W. Muller, as chairman and executive director of the State Insurance Fund of the State of New York, from an order directing them to submit to an examination before trial in a proceeding brought by petitioner, respondent, for reinstatement. The burden of proof is clearly upon the petitioner, respondent, in this proceeding. The facts which he must obtain for the purpose of the trial and the protection of his position, held by him for over twelve years, are within the peculiar knowledge of these appellants, or are in the records under their control. In this proceeding the claim is made that certain employees of the State Insurance Fund maliciously and willfully exercised their powers in order to secure the dismissal of petitioner, respondent. The proceeding is directed to individuals by reason of their acts and conduct rather than at the State or some one of its agencies. Order affirmed, with costs. Crapser, Heffernan, Schenck and Foster, JJ., concur; Hill, P.J., concurs in the result.