
    Emma Kelly, App’lt, v. The New York Central & Hudson River Railroad Co., Resp’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed December 8, 1892.)
    
    Depositions—Examination before trial.
    A party litigant may, in the discretion of the justice to whom application is made, upon complying with the provisions of the Code in relation thereto, have a general examination of his adversary as a witness before tiial. and such examination is not limited to an affirmative cause of action or an affirmative defense.
    Appeal from an order denying motion to vacate an ex parte order for examination of plaintiff by defendant before trial.
    This action is brought by the plaintiff to recover from the defendant for injuries alleged m the complaint to have been sustained by her on the 19th day of March, 1892, while a passenger upon one of defendant’s trains, said injuries being alleged to have been occasioned by the negligence of the defendant.
    
      The action was commenced by the service of a summons and complaint on the 13th day of June, 1892. The defendant answered, denying upon information and belief the allegations contained in the complaint setting forth the injury-claimed to have been sustained, and denying upon information and belief that the same were caused through the negligence of the defendant, its agents or servants.
    After the service of the answer, the defendant applied to Hon. Leslie W. Russell, upon the affidavit of Thomas Spratt, its attorney, Doctor Elisha H. Bridges and James P. Kirby, for, and the said judge, granted, an order requiring the plaintiff to submit to an examination by the defendant before trial, such examination td be had before a referee named in said order, and in the presence of physicians to be selected by the defendant or plaintiff, not to exceed four.
    The plaintiff before the day fixed for the examination- applied to the same judge upon all the pleadings, the affidavit of the plaintiff, of C. A. Kellogg, her attorney, Doctor Southwick, her physician, and the affidavit of her sister, for an order to show cause why the order granted to the defendant should not be vacated and staying the examination until the hearing of the order- to show cause.
    Upon the hearing of the order to show cause, which was heard upon the papers upon which defendant’s order was granted, and upon the papers presented upon the granting of the order to show cause, the motion to vacate was denied without costs; the judge, however, modifying the former order made by him for the examination of the plaintiff by providing for adjournments and limiting the examination to plaintiff’s mental and physical condition previous to the injury, the nature of such injury and her subsequent mental and physical condition.
    From that portion of the order denying plaintiff’s application to vacate the order requiring the plaintiff to be examined before trial, the plaintiff appeals.
    
      C. A. Kellogg, for app’lt; Thomas Spratt, for resp’t.
   Herrick, J.

It seems to me that the affidavits upon which the order for an examination was granted embody all the requirements of §§ 872 and 873 of the Code of Civil Procedure.

And unless in the exercise of his discretion the justice to whom the affidavits were presented determined that the evidence sought was immaterial or unnecessary, or that the examination sought was merely for the purpose of annoyanóe or delay, the defendant was entitled to the order as a matter of right. Watts v. Wilcox, 43 St. Rep., 417, affirmed in 133 N. Y., 672; 45 St. Rep. 930.

A party litigant may, in the discretion of the judge or justice to whom application is made, upon complying with the provisions of §§ 870-872 and 873 of the Code of Civil Procedure have a general examination of his adversary as a witness in the case, as well before as at the trial. ,And such examination is not limited to an affirmative cause of ^action or an affirmative defense. Herbage v. City of Utica, 109 N. Y., 81; 14 St Rep., 845. This case somewhat modifies the law as held in some former cases and as understood by many of the profession.

That discretion is to be exercised on the line indicated in Watts v. Wilcox, supra; and while this court has a right to review such exercise of discretion by the justice, it will not reverse his decision unless it appears very clearly to the court that error has been committed. In this case I cannot see that any such error has been committed.

The order should be affirmed, with ten dollars costs and printing and other disbursements.

Mayham, P. J., and Putnam, J., concur.  