
    Rose Falco, as Administratrix, etc., of Andrew Falco, Deceased, Respondent, v. The New York, New Haven and Hartford Railroad Company, Appellant.
    Second Department,
    April 10, 1914.
    Discovery — negligence causing death — reports of accident made by employees of railroad company.
    An administratrix suing a railroad company to recover for the death of an employee who is alleged to have been struck by a part of a defective locomotive, which was blown or thrown from it, is not entitled to an open commission requiring the defendant to allow an inspection of original reports made by its employees relative to the accident by which the intestate was killed, or reports relating to the part of the locomotive or train which became detached therefrom and which was found near the body of the intestate.
    A discovery is for the purpose of obtaining evidence, and such documents are not evidence within the purview of the statute, or of the court rules.
    It is not sufficient that the documents may suggest or furnish a clew to evidence, or that the plaintiff is suing in a representative capacity.
    Appeal by the defendant, The New York, New Haven and Hartford Railroad Company, from part of an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 17th day of February, 1914.
    The action is brought by the administrator of a servant against a master to recover damages for the death of the servant. The plaintiff complained that the defendant is a foreign Connecticut State railroad corporation; that her intestate was struck by part of the appliances of the defendant’s locomotive engine, sustained fatal injuries, and that the casualty was due to defects in the defendant’s ways, works, plant, appliances, locomotive, and the appliances thereof and equipment, and by the negligent acts of the defendant’s agents, officers and employees, and by the negligence of the defendant’s employees, exercising superintendence, control and command over said plaintiff’s intestate, and by the defendant’s failure to formulate, promulgate and enforce proper rules and regulations for the safety of said intestate and his coemployees, and that said defendant conducted its work by unsafe and dangerous methods, and by unsafe and dangerous locomotives, and appliances thereof, as a result of all of which as this plaintiff’s intestate was upon defendant’s right of way in the perform-' anee of his duties, part of the appliances of one of said defendant’s locomotives was violently blown therefrom and struck and killed said plaintiff’s intestate. The defendant admits its status as a corporation, and makes otherwise general denial. The Special Term made an order, after issue was joined, that granted plaintiff’s motion for an open commission, and for the inspection of the written reports made by the defendant’s employees to the defendant, and further ordered that the defendant produce for inspection and examination of the plaintiff’s attorney, at a Trial Term on a day and hour specified, the original of each and every report which any and all employees of the defendant made to the defendant, its agents or officers, as to what they observed or discovered with reference to the happening of the occurrence in which the intestate was killed, including all such reports as may have been made to the defendant, its agents or officers, by the defendant’s employees, as to any cylinder head, step or fragment, or detached part of the locomotive or train, which may have come from the said locomotive and train, and which was found in proximity to the body of the plaintiff’s intestate, including such reports as the said employees made to the defendant as to what disposition they made of such cylinder head, step or fragment, and including such reports as were made to the defendant, its agents or officers, by the defendant’s employees as to the said cylinder head, step or fragment being missing from the said locomotive or train; likewise ordered that the plaintiff, her attorney, or his representative, shall be then and there afforded a full opportunity to make copies of said reports, and further ordered that, if it shall appear from said testimony and inspection that there is in the defendant’s possession or under its control a fragment or detached part which came from the locomotive and train, and caused the death of the plaintiff’s intestate, another application can be then made by the plaintiff for its inspection. The defendant appeals from so much of the.order as requires the defendant to give to the plaintiff an inspection of the written reports made by the defendant’s employees to the defendant, and the original of each and every report which any arid all employees of the defendant made to the defendant, its agents or officers, as to what they observed or discovered with reference to the happening of the occurrence in which the intestate was killed, including all such reports as may have been made to the defendant, its agents or officers, by the defendant’s employees as to any cylinder head, step, fragment or detached part of a locomotive or train, including such reports as the said employees made to the defendant as to what disposition they made of such cylinder head, step or fragment, and that the plaintiff, her attorney, or his representative, shall he then and there afforded a full opportunity to make copies of such reports.
    
      William L. Barnett [Charles M. Sheafe, Jr., with him on the brief], for the appellant.
    
      Thomas J. O’Neill, for the respondent.
   Jenks, P. J.:

The power of the court is prescribed and regulated by sections 803-809 inclusive of the Code of Civil Procedure, and by rules 14,15 and 16 of the General Eules of Practice. (Walsh v. Press Co., 48 App. Div. 333; Matter of Ehrich v. Root, 134 id. 437.) The procedure contemplates evidence. (Woods v. De Figaniere, 25 How. Pr. 522; Merguelle v. Continental Bank Note Co., 7 Robt. 77; Davis v. Dunham, 13 How. Pr. 425; Ahlymeyer v. Healy & Bigelow, 12 N. Y. St. Repr. 677; Matter of Ehrich v. Root, supra; Hallenbeck v. Parr, 65 App. Div. 167.) The documents sought to be discovered are not evidence within the purview of the statute or the rules. It is not enough that the documents suggest or may furnish a clew to evidence. (Woods v. De Figaniere, supra; Morrison v. Sturges, 26 How. Pr. 177; Walsh v. Press Co., supra.) The burden was upon the plaintiff to establish a condition that would have justified the order. (Beyer v. Transit Develop ment Co., 139 App. Div. 724.) The fact that the plaintiff is a representative of the deceased does not afford to her any further or additional rights. (Merguelle v. Continental Bank Note Co., supra.)

The order, in so far as appealed from, is reversed, with ten dollars costs and disbursements.

I

Burr, Thomas, Carr and Rich, JJ., concurred.

Order, in so far as appealed from, reversed, with ten dollars costs and disbursements.  