
    Anton Lehr, as Administrator of the Estate of Anton Lehr, Jr., Deceased, Plaintiff, v. City of New York, Defendant.
    Supreme Court, Special Term, Queens County,
    April 26, 1961.
    
      Holtsman, Sharf, Maclcell & Hellenbrand for plaintiff. Charles H. Tenney, Corporation Counsel, for defendant.
   Harold J. Crawford, J.

This is an action to recover damages for the alleged wrongful death of the plaintiff’s intestate, a police officer employed by the defendant. The plaintiff moves for discovery and inspection of the vehicle known as radio motor patrol car No. 1727 owned by the defendant. It is alleged that the plaintiff’s intestate, while in the performance of his duties for defendant, was caused to he asphyxiated by carbon monoxide while occupying this said vehicle and that this occurrence was caused by the negligence of the defendant in supplying the vehicle to plaintiff’s intestate in a defective and dangerous condition. The plaintiff also seeks discovery and inspection of the outside premises of the New York City Grand Central Police Precinct where it is alleged the unfortunate occurrence took place, including the right to visit, examine, measure and photograph the said premises.

In the course of his discovery and inspection of the vehicle, the plaintiff seeks to conduct tests of the entire exhaust system and any and all parts pertaining thereto, to photograph, measure and operate said vehicle and to conduct metallurgical tests for metal fatigue, stress and defect of any and all portions of said vehicle and in particular its exhaust system.

The plaintiff alleges and the defendant does not deny that there has been no change in the condition of the vehicle since the accident as it was impounded immediately thereafter and removed to the Police Department garage where it is presently located. Inasmuch as the discovery and inspection of both the vehicle and the premises would seem to be material and competent as evidence and reasonably necessary to enable the plaintiff to prepare for trial, the motion is granted with the following conditions: The date and time for each of the inspections will be settled in the order to be fixed hereon on notice. Prior to the tests of the vehicle, each party or a representative thereof will be permitted in the presence of the other party or a representative to examine and photograph the vehicle and its component parts to insure the integrity of the tests; the defendant or its representative will be permitted to observe all tests made; and the plaintiff will furnish defendant with a copy of the reports of the tests.  