Opinion
March 10, 1943.
Appeal from Albany County.
Plaintiff was injured when a folding or Murphy bed in a room which she rented furnished of the defendants collapsed and struck her. She moved for an examination of the defendants and the premises and furnishings before trial, and also to inspect a written statement obtained from her by an insurance company investigator for the defendants the day after the accident and while she was confined to her bed. The motion was granted and the defendants appealed from the entire order but upon the argument have raised only the question as to the right of the plaintiff to inspect and copy her statement. While it appears at this stage of the litigation that the plaintiff probably would not be permitted to put her statement in evidence as a part of her affirmative case, nevertheless, she might be cross-examined with relation thereto or the defendants might offer it in evidence. Plaintiff would have the right, through a subpoena duces tecum or a notice to produce, to have the statement produced in court and to there examine it the same as any other document. The very purpose of an examination before trial might well be thwarted by a refusal to permit the plaintiff to now examine and copy this document. One of the reasons for an examination before trial is to encourage the disposition of litigation by way of settlement in advance of the trial. There is also a considerable dispute as to the plaintiff's physical condition at the time this adjuster obtained the statement. Plaintiff says she was in a weakened condition and in intense pain, that she does not know the contents of the statement and no copy was left with her. Also, the adjuster promised to see that she was taken care of. The investigator, himself, swore that she was in bed and had her leg in a splint at that time. Had she been in a hospital instead of a private home, the taking of the statement would have been a crime. (Penal Law, § 270-b.) Under all these circumstances the Special Term was amply justified in directing the defendants to produce the statement and permit the plaintiff to examine and copy it. Order affirmed, with ten dollars costs and disbursements, and the examination is directed to be had before the referee named in the original order at the place there designated, on the 18th day of March, 1943, at ten o'clock A.M. All concur.