
    Margaret Kessler, Respondent, v. North River Realty Company, Appellant.
    First Department,
    November 19, 1915.
    Deposition—examination of party before trial — action for tort — negligence — action against landlord — dangerous condition of stair carpet—notice of defect.
    The court may grant an order for the examination of a party before trial in actions to'recover for personal injuries.
    The- court will grant a party to an action an opportunity to examine his adversary before trial only for the purpose of proving facts necessary to the"examining party’s affirmative ease or defense, but not for the purpose of disproving facts which the adversary must affirmatively prove in order to succeed.
    
      Where a tenant sues her landlord to recover for personal injuries suffered by reason of the alleged negligence of the defendant in permitting a stair carpet to become worn and dangerous, the court will authorize an examination of the defendant before trial for the purpose of showing that it had notice, direct or inferential, of the defective condition of the stairway, for of such notice the plaintiff must give affirmative proof, and to that end the defendant may be required to produce documents in its possession showing actual notice.
    But the court will not order the production of leases and conveyances affecting the premises.
    Appeal by the defendant, North River Realty Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 1st day of September, 1915, denying its motion to vacate an order for its examination before trial.
    
      Otto D. Parker, for the appellant.
    
      Donald C. Muhleman, for the respondent.
   Scott, J.:

The action is by a tenant against the owner of a tenement house for damages suffered in consequence, as it is alleged, of the negligence of defendant in permitting a stair carpet to become worn and dangerous.

The order sought to be vacated requires the examination of defendant, by four of its officers, as to all the issues in the action, and also calls for the production of certain papers and documents. This order is too broad and requires modification. The defendant, however, insists that it should be vacated absolutely. This contention is based mainly upon the erroneous supposition that this court had declared against any examination before trial in an action for damages for personal injuries. This is a mistake. No such general rule has ever been laid, down, nor could it be without ignoring the provisions of law providing for examination before trial in certain cases. The Code (§ 870 et seq.) makes no distinction between actions in tort and other actions, and we should have no right to establish an arbitrary rule upon the subject. What we have done is to say that under ordinary circumstances we would not permit a defendant to examine a plaintiff in an accident case before trial as to the circumstances of the accident or the alleged negligence of defendant. (Wood v. Hoffman Co., 121 App. Div. 636; Griffin v. Cunard Steamship Co., Ltd., 159 id. 453.) These decisions have proceeded upon the theory that an examination before trial would amount to nothing more than a cross-examination of plaintiff and an inquiry into his case. In so holding we have merely adhered to the rule we have tried to follow consistently that a party, plaintiff or defendant, can examine his adversary before trial only for the purpose of proving facts necessary to the examining party’s affirmative case or. defense, but not for the purpose of disproving facts which the adversary, must affirmatively prove in order to succeed. In other words, the testimony sought to be elicited must be necessary for the use of the party seeking to elicit it in establishing some fact which he must affirmatively prove. (Oakes v. Star Company, 119 App. Div. 358.) Tested by this rule the plaintiff is, I think, entitled to examine defendant for the purpose of showing, if she can, that it had notice of the defective condition of the stairway. Notice in such a case may be either direct or inferential, and it will be incumbent upon plaintiff to show not only the defect complained of, but also that defendant had notice thereof. To prove this she is entitled to examine defendant and to have produced any documents that may be in its possession showing actual notice. She is also entitled to show by defendant’s officers that defendant had control over all the hallways, lobbies and staircases of the tenement house in question, unless defendant shall stipulate, as it has once offered to do, that it had such control, in which case an examination upon this subject will be unnecessary. We can see no reason for the production of the leases and conveyances affecting the premises.

The order appealed from will, therefore, be so modified as to limit the order, for examination-before trial as above indicated; • and as so. modified affirmed, without costs to either party.

Ingraham, P. j., McLaughlin, Laughlinand Clarke, JJ., concurred.

Order modified as directed in • opinion, and as modified affirmed, without costs. Order to be settled on notice.  