
    Esther R. Acker, Also Known as Esther R. Brause, Plaintiff, v. Terminal System Inc. et al., Defendants.
    Supreme Court, Special Term, Kings County,
    May 22, 1958.
    
      Esther B. Brause, in person, and Archie Brause for Esther R. Brause, plaintiff.
    
      Moses Katcher for defendants.
   Anthony J. Di Gtovanna, J.

It appears that at the time of the service of the summons and complaint upon each defendant, each defendant was also served with a notice for examination before trial returnable on April 29, 1958. The defendants each served an answer on April 28, 1958, together with a notice for examination before trial of the plaintiff on May 12, 1958. The present motion is one to punish the defendants in the manner provided by law for having failed to appear for the examination April 29, 1958. This is indeed an unusual procedure. Despite the arguments of plaintiff the Civil Practice Act does not permit notices of examinations before trial to be served together with a complaint. This is not an application for an examination before the commencement of an action on or before service of a summons and complaint. Such examination in any event could not be held by service of a notice only. In order to properly state issues upon which examinations shall be held the plaintiff must await the service of an answer before he could know what the issues are. The notice served in this case was entirely ineffectual for the purposes indicated. It was apparently designed to overcome the present existing rules which permit a defendant to first obtain examination of the plaintiff by serving, together with the answer, a notice for such examination. Such procedure insures the defendant the first examination. That is the accepted practice and in the First Department has been enacted into rules. These rules were followed in this department from the very inception of rule 121-a of the Rules of Civil Practice. Consequently the motion is denied. The plaintiff is bound to appear first for the examination in this case.

Submit order.  