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general examination of his adversary as a witness in the cause, as well before as at the trial, and that it is not, as of course, to be limited to an affirmative cause of action, or an affirmative defense, set forth in favor of the party desiring that examination. The order appealed from was so limited, not according to the discretion of the court, by which it might have been restrained, but because, as appears by the order, the court was of opinion that it had no power to order otherwise. The order appealed from should therefore be reversed, and the case remitted to the Supreme Court for further consideration.”

When this court, in Goldmark v. U. S. Electric-Galvanizing Co., 111 App. Div. 526, 97 N. Y. Supp. 1078, swept away a mass of technicalities which had been ingrafted upon the Code sections, so as almost to throttle them, and adopted the liberal policy which has since obtained, we said, referring to rule 82 of the General Rules of Practice, in connection with the Code sections:

“The rule that the affidavit must state the facts and circumstances to show that the deposition of the proposed witness is material and necessary to the party making the application is intended to prevent an abuse of the permission to examine an adverse party, so that a party to an action will not be allowed to examine his opponents for an ulterior or improper purpose.

The right given by these sections of the Code is subject to abuse, and it is the duty of the court to prevent the abuse of its processes."

Bearing in mind that what was decided in the Herbage Case, supra, was that while the court had the power to permit the examination of an adverse party, and that such examination was not, as of course, to be limited to an affirmative cause of action or affirmative defense, yet it lay within the discretion of the judge to allow a general examination, it will be seen that in none of the cases cited has this court denied its power to grant such examination. In Oakes v. Star Company, 119 App. Div. 359, 104 N. Y. Supp. 244, the order was vacated because the testimony sought to be elicited would have been inadmissible upon the trial, and consequently, under the rule and the statute, could not be considered necessary or material. Wood v. Hoffman, 121 App. Div. 636, 106 N. Y. Supp. 308, was a negligence case, and the defendant sought to examine generally the plaintiff, and we said that:

“The fundamental rule that the testimony sought must be material and necessary for the use of the party applying upon the trial for the order has not been abrogated.

It is quite improbable that a defendant in a negligence case could in good faith say that he intended to use the deposition of the plaintiff upon the trial of the action, and that such testimony was material and necessary for the defense.

While we do not say that under no circumstances can a defendant examine a plaintift before trial in a negligence action, we do hold that in ordinary actions such an examination should not be permitted.”

In Hartog v. Richmond Cedar Co., 124 App. Div. 629, 109 N. Y. Supp. 113, we reversed an order obtained by the defendant for plaintiff's examination, the sole purpose of which was an attempt to obtain information of the items which made up the plaintiff's alleged damages; and in Caldwell v. Glazier, 128 App. Div. 315, 112 N. Y. Supp. 655, we said:

“It has been repeatedly held in this department that such examinations are only allowed where the object is to obtain evidence essential to the

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moving party's case or defense, and when it is the intention of the party to use the examination upon the trial.”

The facts were examined into in all of these cases, and in no one of them was the denial of the examination placed upon the want of power in the court to grant it. It is rarely that a litigant can truthfully state that the testimony of the opposing party, in regard to that party's affirmative cause of action or defense, is material and necessary to the applicant. It may be extremely convenient to obtain it in advance of the trial, and we often find in papers upon these motions the statement that such evidence is necessary to enable the applicant to prepare for trial; but no such ground for examination is provided for in the Code. That would transfer the procedure into a pure fishing excursion, and ignore the controlling words, "testimony necessary and material.” It is this reason which has actuated this court in refusing such relief, in the exercise of discretion, when it was apparent that the testimony sought to be elicited would be neither material nor necessary. But where a defense has been set up which, if established and unanswered, would destroy the cause of action, if the plaintiff in his moving papers shows that he desires an examination of the defendant, not for the purpose of disclosing that defense which has already been disclosed by the answer, but to avoid it, then such evidence is material and necessary to the plaintiff's cause of action, because without it that cause would be gone. Under such circumstances an examination may be had.

We applied this principle in McKenna v. Tully, 109 App. Div. 598, 96 N. Y. Supp. 561, where the appellant urged that an order for examination of the defendants should be vacated, upon the ground that it was sought merely for the purpose of prying into the defense, that the action was for the specific performance of a contract for the sale of land, and that all that plaintiff would be required to do would be to prove the contract, his performance, and the breach; that the defendant would then assume the burden of showing that the transfers of which plaintiff complained were made without notice, in good faith, and for a valuable consideration; and that, being matters of defense, the examination would not be allowed. We said:

"In order to establish the cause of action set up, and to obtain the relief demanded, it therefore becomes necessary for the plaintiff to affirmatively establish the facts in regard to the various transactions respecting which he desires an examination. Therefore he comes directly within the rule, as the testimony is sought to uphold his cause of action, and not to destroy a defense."

So in the case at bar the facts in regard to which the plaintiff desires to examine the defendant are facts the proof of which he claims will be necessary and material evidence to support his cause of action by avoiding the defense set up of cancellation of the contract. He seeks to show the alleged cancellation ineffective. We think plaintiff has brought himself within the language and spirit of the provisions of the statute and the rule as interpreted by the recent cases; that his object is not to pry into his opponent's defense, but to affirmatively sustain his cause of action and the burden cast upon him by the pleadings.

in this opinion, the order appealed from should be reversed, with $10 costs and disbursements, and the plaintiff allowed the examination applied for, with $10 costs. The date for such examination may be inserted in the order to be entered hereon upon notice. All concur.

MORIARTY v. CITY OF NEW YORK. (Supreme Court, Appellate Division, Second Department. April 23, 1909.). 1. MUNICIPAL CORPORATIONS (8 791*) — TORTS — DEFECTS IN STREETS — CON

STRUCTIVE NOTICE.

A piece of flagstone over which plaintiff fell was left by city employés about six inches from a curb hydrant, remaining on the sidewalk for two weeks, during which time it was moved by boys to various places on the sidewalk within six feet from the hydrant. Held, that the whole time the stone was on the sidewalk justified a finding of constructive notice to the city, in an actiou for the injuries.

(Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. 88

1647-1651; Dec. Dig. $ 791.*] 2. COURTS (8 107*)—RULE OF DECISION-CONSTRUCTION OF OPINIONS.

An opinion must be construed and interpreted in connection with the facts stated therein, and the record should not be looked to for the facts upon which the case was decided.

[Ed. Note.--For other cases, see Courts, Cent. Dig. § 360; Dec. Dig.

§ 107.*] 3. WORDS AND PHRASES—"GENERAL LOCALITY"'-"NEIGHBORHOOD.”

The phrase "general locality” and the word "neighborhood" imply a considerable territory, and cannot be used in a legal sense as describing a circle on a street of a diameter of about six feet.

(Ed. Note.-For other definitions, see Words and Phrases, vol. 5, pp. 4773 4775.] Appeal from Trial Term, Kings County.

Action by Mary Moriarty against the City of New York. From a judgment for plaintiff, defendant appeals. Affirmed.

The action is for damages for negligence. The plaintiff tripped on a loose fragment of stone lying on the sidewalk at a street corner. It was about 18 inches long, 12 wide and 3 or 4 thick. It was a corner of a flag of the sidewalk there which city employés had recently broken off in setting a hydrant by the curb. They left it there close up to the hydrant. During two weeks it remained there, but not in the same exact spot. It was shifted from place to place, from 6 inches to about 6 feet from the hydrant, on the sidewalk and in the roadway, within a circle of a radius of about 6 feet from the hydrant as the centre. Boys moved it about and used it to jump from.

Argued before WOODWARD, JENKS, GAYNOR, BURR, and RICH, JJ.

James D. Bell, for appellant.
A. L. Pincoffs (Edward D. O'Brien, on the brief), for respondent.

GAYNOR, J. The time that the stone was being moved about on the street, two weeks, was ample to base a finding of constructive notice to the city on. It cannot be held, as the learned counsel for the appellant urges, citing the recent case of Orser v. City of New •For other cases see same topic & S NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

York, 193 N. Y. 537, 86 N. E. 523, as authority, that every time the stone was shoved 6 inches, or a foot, or 6 feet, to a new position, a new question of constructive notice, dating from that time, arose, and that as there is no evidence to show how long it was on the precise spot where it was when the plaintiff tripped on it, there is no evidence of a sufficient length of time to base such notice on. It is evident that the whole time during which the stone was being shoved about from one spot to another within the small space in which it was all the time, i. e., within a circle of a radius of about 6 feet, has to be considered in establishing constructive notice to the city, and not merely the time elapsing after it was put on the precise spot where it was when the plaintiff tripped on it. It is true that it is said in the opinion in the Orser Case that the law of constructive notice could not be applied to the plaintiff's case "unless there was evidence tending to show the presence of the stone in the precise place where she fell over it" long enough to impute to the city officials notice that it was there. But it is also said there that the evidence showed that the stone had been in the "general locality" for two weeks, and that it had been "removed to the neighborhood of the telegraph pole,” near which pole the plaintiff was hurt. This phrase "general locality," and word "neighborhood," imply a considerable territory, and the removal of the stone from the place where it was to another neighborhood, namely, the “neighborhood" in which the telegraph pole was. They cannot be understood in careful legal statement, if even in poetical or oratorical license or looseness, as describing a circle on a street of a diameter of 12 feet. We are told, however, that if the record of that case be looked into it will be found that the portable stone that caused the accident there was also all the while within a 12-foot circle, instead of from place to place in a territory large enough to be called a "general locality" or a "neighborhood"; but the decision must be tested and interpreted as based on and applicable to the state of facts stated in the opinion.

The judgment should be affirmed.

Judgment and order affirmed, with costs.

All concur.

JAFFA V. NASSAU ELECTRIC R. CO.

(Supreme Court, Appellate Division, Second Department. April 23, 1909.) 1. STREET RAILROADS (8 117*)-OPERATIONS--ACTIONS FOR INJURIES-QUESTIONS

FOB JURY.

Testimony of one injured in a collision with a street car that he drove upon the track for several blocks without looking back, that when he looked the car was 35 feet away, and that he was about to turn out when he was struck, does not authorize a finding as a matter of law that he was free from contributory negligence, and that the motorman was neg. ligent.

(Ed. Note.--For other cases, see Street Railroads, Cent. Dig. && 244, 250 ; Dec. Dig. $ 117.*]

2. STREET RAILROADS (8 118*)-OPERATION-ACTIONS FOB INJURIES—INSTRUC

TIONS.

It is error to refuse to charge that a street railway company has a paramount right to its track in the middle of a block, as against one driving upon the track.

(Ed. Note.—For other cases, see Street Railroads, Cent. Dig. $ 264; Dec. Dig. § 118.*] Appeal from Municipal Court, Borough of Brooklyn, Second District.

Action by Morris Jaffa, an infant, by Samuel Jaffa, his guardian ad litem, against the Nassau Electric Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.

Argued before WOODWARD, JENKS, GAYNOR, BURR, and RICH, JJ.

Francis R. Stoddard, Jr., for appellant.
Adolph Benevy, for respondent.

WOODWARD, J. The plaintiff claims to have been injured in a collision with one of the defendant's surface cars; that he was driving upon the track, having looked back at the time of entering upon the track and seeing no car; that "after driving several blocks I looked back, and saw the car right in back of me, and I was just about to turn out when the car struck me and Aung the wagon over”; that the car was about 35 feet away when he looked back; that he drove upon the car tracks to avoid the mud, etc. There was the usual testimony as to the speed of the car, how soon it could have been stopped, etc., and the learned court disposed of the questions in the following charge to the jury:

“The only question in this case, which the court is going to submit to you, is the question as to whether the plaintiff suffered any damage by reason of the fall or jumping off of the wagon which you have heard him testify to. Now, it is for you to say whether he suffered any damages at all; and, if you find that he did not suffer any damages, then you will render a verdict in favor of the defendant. If, on the other hand, you are satisfied that he did suffer injuries by reason of the occurrence which you have heard testified to, then you will render a verdict in favor of the plaintiff for such sum of damages as you think will reasonably compensate him for his pain, suffering, trouble, and inconvenience.”

Counsel for defendant took an exception to this charge on the ground that it took from the jury the questions of contributory negligence and of defendant's negligence, questions which could not, under the evidence, be properly disposed of as matters of law. Counsel likewise asked the court to charge that “the question of contributory negligence is still before the jury”; but this the court refused, the defendant taking an exception.

Clearly there can be no question of the error in this charge, and the refusal to charge. The plaintiff is bound to show affirmatively that he has been free from negligence contributing to the accident. He is an interested witness, and his testimony that he traveled upon this railroad track for several blocks without looking behind him, and that when he did look back the car was within 35 feet of him, and that he was just *For other cases see same topic & S NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

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