The case of the surety's responsibility to the third party, factually and legally, is not the same as that of the principal's liability to the surety; and the two rulings — although one is in the negative and the other in the affirmative — would not, in the least, be inconsistent or incongruous (cf. Simon v. Lowenthal, 169 Misc. 718, affd. sub nom. Simon v. Kapilow, N.Y.L.J., April 22, 1939, p. 1852, col. 7; Ostapenko v. Fuller Co., 27 Misc.2d 93, affd. 13 A.D.2d 650, motion for reargument or leave to appeal denied 13 A.D.2d 917, motion for leave to appeal granted 10 N.Y.2d 706, affd. 11 N.Y.2d 782).
First, as to the plea of contributory negligence. From what is presented, it appears that plaintiff does not have knowledge of the facts surrounding the accident and that it may be that defendant does have some knowledge. In such event, plaintiff is entitled to the particulars sought ( Murrain v. Wilson Line, 266 App. Div. 179). Defendant will not be prevented from developing the facts on cross-examination of plaintiff's witnesses or from relying on what may be presented as proof by the codefendants or by way of cross-examination of their witnesses (cf. Simon v. Lowenthal, 169 Misc. 718, affd. sub nom. Simon v. Kapilow, N.Y.L.J., April 22, 1939, p. 1852, col. 7 [App. Term, 1st Dept.]). If defendant does not possess the information requested as to any specific item, it should so state in the bill under oath. "If, however, the defendant has evidence of its own which it contends will establish contributory negligence, in fairness and justice, the plaintiff should be advised thereof" ( McGann v. Adler, 149 Misc. 745, 746, affd. 241 App. Div. 726). Under section 131 of the Decedent Estate Law, in an action for wrongful death, contributory negligence of the decedent is a defense to be pleaded and proven by the defendant, and in an appropriate case should be particularized.
The moving defendant argues that, as the injured plaintiff was a passenger in one of the two colliding vehicles, "the usual method of trying such cases is by calling the operator of each automobile", and therefore "the necessity for this examination before trial is not apparent", and it certainly "is not obvious" — says he — why the examination should be held at the present time, so long in advance of the trial. My own view as to the tactical disadvantage generally suffered by a plaintiff who awaits the trial itself before procuring the testimony of the operators of two colliding vehicles was expressed some time ago in Simon v. Lowenthal (169 Misc. 718, 721, affd. N. Y. L. J., April 22, 1939, p. 1852, col. 7).
The moving defendant argues that, as the injured plaintiff was a passenger in one of the two colliding vehicles, "the usual method of trying such cases is by calling the operator of each automobile", and therefore "the necessity for this examination before trial is not apparent", and it certainly "is not obvious" — says he — why the examination should be held at the present time, so long in advance of the trial. My own view as to the tactical disadvantage generally suffered by a plaintiff who awaits the trial itself before procuring the testimony of the operators of two colliding vehicles was expressed some time ago in Simon v. Lowenthal ( 169 Misc. 718, 721, affd. N.Y.L.J., April 22, 1939, p. 1852, col. 7).