
    ELLNER et al. v. DRAPER et al.
    Civil 11452.
    United States District Court E. D. New York.
    May 24, 1951.
    Charles. H. Ellner, Jamaica, N. Y., for plaintiffs.
    Richard R. Bongartz, New York City (William A. Colton, New York City, of counsel), for defendants.
   BYERS, District Judge.

This is a defendant’s motion to require plaintiffs to make discovery and permit inspection and copying of their decedent’s state and federal income tax returns for 1947, 1948, 1949 and 1950. The moving affidavit asserts that “defendant is entitled” to this discovery and inspection, but no reason is stated.

This is a death action in which- the decedent was killed while a passenger on the Long Island Railroad, and -it is to be anticipated that liability will be conceded as in many -other cases in this Court arising from the Rockville Center collision on November 22, 1950, which was the one here involved.

One element of -damage will be the earning capacity of the decedent. That is quite unrelated to income of any other nature, as for instance from investments.

The plaintiffs have furnished employer’s withholding certificates showing decedent’s wages and the amount withheld for taxes in connection therewith, for the years 1949 and 1950. Why the defendant is entitled to more information on that subject is not presently understood, nor does the affidavit in reply contain the statement of any adequate reason in that behalf.

The Ring case (Civil Action 10782 in this Court) has been consulted, and since it involved earnings in an occupation other than that for which a salary was paid to decedent, recourse to income tax returns seems to have been the only method to establish his earnings, since his widow stated on examination that she lacked information on the subject. Nor are the other citations seen to be in point.

In the absence of any such showing here as in the Ring case, supra, and in the exercise of the discretion contemplated by Rule 30(b), Fed.Rules Civ.Proc., 28 U.S.C. A., the motion is denied.

Settle order. 
      
      . No opinion for publication.
     