
    James F. Muldoon, Jr., as Administrator, etc., of Arthur Muldoon, Deceased, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    
      Deposition—an examination of a railroad company, as to the identity of, and the corporation operating, a train by which the plaintiff’s intestate was hilled, is proper — it is otherwise as to its authority to operate cars.
    
    The complaint in an action brought to recover damages resulting from the death of the plaintiff's intestate alleged that the defendant corporation was at the time in question operating negligently and without legal right a railroad and running trains thereon through Eleventh avenue in the city of New York, and thereby maintained a public nuisance, and that while doing so one of the trains under its control ran over and killed the plaintiff’s intestate.
    
      Held, that the plaintiff was entitled, under subdivision 7 of section 872 of the Code of Civil Procedure, to examine the officers of the defendant as to the identity of the train which killed the intestate, and whether such train was operated and controlled by the defendant or by some other railroad corporation which, by virtue of some traffic or other contract between the corporations, was operating trains on Eleventh avenue;
    That the plaintiff was not, however, entitled to examine such officers for the purpose of ascertaining by what authority, if any, the defendant operated trains on Eleventh avenue, as such authority, if any, must have been derived from the State with the consent of the municipality, and as the evidence thereof was contained in public statutes and ordinances and in maps and certificates filed and recorded in public offices open to inspection and capable of proof by means specifically prescribed by law.
    Appeal by the defendant, The Hew York Central and Hudson River Railroad Company, from so much of an order of the Supreme Court, made at the Hew York Special Term, bearing date the lltli day of August, 1904, and entered in the office of the clerk of the county of Hew York, as denies the defendant’s motion to vacate an order bearing date the 19tli day of July, 1904, directing the examination of the defendant as an adverse party.
    
      Charles C. Paulding, for the appellant.
    
      Robert L. Stanton, for the respondent.
   O’Brien, J.:

This action was brought pursuant to the provisions of section 1902 of the Code of Civil Procedure to recover damages for a death claimed to have been caused through the defendant’s negligence.

The complaint alleges that the defendant corporation was at the time in question operating negligently and without legal right a railroad and running thereon trains through Eleventh avenue in New York city and thereby maintained a public nuisance and while doing so one of the trains under its control ran over and killed plaintiffs intestate. These allegations were denied by answer and thereafter the plaintiff obtained an ex parte order directing that the defendant corporation be examined as an adverse party before trial and that testimony of one of the officers thereof be taken, pursuant to subdivision 7 of section 872 of the Code of Civil Procedure.

What the plaintiff seeks from the examination óf defendant’s officer is evidence to prove that the train which killed the decedent was operated or controlled by the defendant corporation and, if not, to ascertain what railroad companies other than the defendant company use the tracks on Eleventh avenue and run trains thereon and what traffic or other contracts the defendant has with numerous companies relating to the use of said tracks; and, second, to show by what authority, if any, the defendant operates trains on Eleventh avenue.

With respect to the first subject, we think the order was properly granted, because the plaintiff was entitled to ascertain, if the knowledge is in the possession of the defendant’s officer sought to be examined, what train it was that killed the decedent, whether one owned and operated by the defendant company or whether by a train owned by another railroad corporation which under contract with defendant had the right to use the tracks on Eleventh avenue, and, in the latter case, what company and under what contracts it used the said tracks. Should it be made to appear that it was one of defendant’s trains that killed the decedent, then upon this branch the examination would end.

With regard, however, to the second branch of inquiry as to the authority of the defendant to operate a railroad on the avenue, it must be conceded that such authority is derived from the State, with the consent of the municipality, and that the evidence of such authority is contained in public statutes and ordinances and in maps and certificates filed and recorded in public offices open to inspection and capable of proof by means specifically prescribed by law. The direction, therefore, that an officer of the defendant should supply this evidence and for that purpose should bring the books and papers of the corporation, was inadvertently made because neither the statement of such officer nor the records, books and papers ” which the plaintiff desired to have produced on such examination would be competent evidence of the legal status of the defendant corporation; and it nowhere appears in the record that there is any record, book or paper which contains such evidence.

We think, therefore, that the order should be modified by confining the examination to obtaining from the defendant evidence as to the identity of the train which killed the decedent and whether such train was operated and controlled by the defendant or by some other railroad corporation which by virtue of some traffic or other contract between the corporations, was operating trains on Eleventh avenue. As so modified, the order should be affirmed, without costs.

Van Brunt, P. J., Hatch and Laughlin, JJ., concurred.

Order modified as directed in opinion, and as modified affirmed, without costs.  