and the bed plate adjusting the work, and he lost the fingers upon both hands.

Upon the trial he alleged negligence in three respects: (1) That he was not properly instructed in the operation of the press; (2) that a stick or other device should have been furnished him, so that it would not have been necessary to put his hands between the dies; (3) that the space between the pedal and the bottom of the bed plate was too short, that the pedal was so adjusted that it did not permit the free use of the leg, and that in attempting to raise the foot from the pedal the knee would at times strike the bed plate and cause the foot to press the pedal and trip the press, when such action was not intended. A notice of the accident was served under section 201 of the Labor Law as it then existed (Consol. Laws, c. 31), and this action was brought August 15, 1910.

[1] The court refused to submit the third alleged ground of negligence to the jury, holding that it was not covered by the notice served, and that no cause of action could be based upon it at common law. The exception to this ruling presents the question upon this appeal.

The complaint specified this ground of negligence as a basis of recovery. At the time the notice was served it is evident that the plaintiff did not comprehend that the shortness of the space between the bed plate and the pedal might cause the foot, without his volition, to press the pedal and trip the press. He evidently believed at that time that the press tripped because of a defective spring, or some mechanism which was out of order, thus causing the upper die to fall when the pedal was not pressed. He stated in the notice that at the time the press tripped his foot was not upon the pedal, and upon a former trial he relied principally upon that ground of negligence. The evidence upon this trial indicated to the satisfaction of the jury that it was necessary to put the hands between the dies in adjusting the work upon this machine. The evidence showed that the press at various times had tripped with other workmen at a time when they did not voluntarily. touch the pedal; that in attempting to take the foot from the pedal at times, the knee would strike against the bed plate, with the result that the foot, without the volition of the operator, would touch the pedal and spring the press. The evidence presented a fair question for the jury, if the plaintiff's injury was not caused in the same manner.

A notice under section 201 of the Labor Law is not intended as a trap to prevent a plaintiff from prosecuting his just claim to the court; neither is it intended as a complaint which should, as far as may be, indicate the particular allegations made against the defendant, but is intended solely to furnish the defendant timely notice of the accident, so that the circumstances may be investigated and the facts ascertained. The law requires that notice shall be given to the defendant of the time, the place, and the cause of the injury, and provides:

"But no notice under the provisions of this section shall be deemed to be invalid or insufficient solely by reason of any inaccuracy in stating the time, place or cause of the injury, if it be shown that there was no intention to mislead and that the party entitled to notice was not in fact misled thereby."

The notice served made it plain that at the time and place stated the

it in the manner directed, and that while he did not voluntarily touch the pedal the machine tripped and caused the injury, and that the machine was unsafe and dangerous. Giving this section its reasonable construction, as indicated by Hurley v. Olcott, 134 App. Div. 631, 119 N. Y. Supp. 430, affirmed 198 N. Y. 132, 91 N. E. 270, 28 L. R. A. (N. S.) 238, and Martin v. Walker & Williams Mfg. Co., 198 N. Y. 324, 91 N. E. 798, it fairly stated to the defendant the time, the place, and the cause of the injury. It is too technical to say that, because plaintiff stated in the notice that the accident occurred while his foot was not upon the pedal, he is precluded from showing that his foot was not upon the pedal by his voluntary act, but that it came in contact with the pedal by reason of the defendant's negligence in not properly adjusting the machine. It is evident that the press would not trip without pressure upon the pedal. If the plaintiff put pressure upon the pedal, he says it was an involuntary act, caused by defendant's negligence. It was error to take this question from the jury.

In the most unfavorable view the plaintiff was entitled to have submitted to the jury the question whether he intended to mislead the defendant by the notice, and whether the defendant had actually been misled by it. We feel, however, that it was unnecessary to submit this question to the jury, as this alleged ground of negligence is fairly within the purview of the notice, and it is evident that there was no intent to mislead the defendant, and that it was not misled. The press all the time was in its possession, and the complaint, served years before the trial and soon after the accident, informed it that the plaintiff relied upon this improper adjustment of the press as a ground of negligence causing the injury. No suggestion is made how the defendant could have been benefited if the notice had expressly stated it, or how the defendant is deceived to its injury by the fact that the notice was not more particular in that respect.

[2] The plaintiff had worked upon the machine but 10 minutes, had never worked upon this type of machine before, and was operating it in the manner directed by his foreman. It cannot be said as matter of law that he assumed the risk, even if this were treated as an action at common law. This consideration may not be important, as we hold that the notice was sufficient to present this question to the jury.

The judgment and order should therefore be reversed, and a new trial granted, with costs to the appellant to abide the event. All concur.

(87 Misc. Rep. 292)

BLUM v. ROSENBAUM.

(Supreme Court, Appellate Term, First Department. November 18, 1914.) 1. DISCOVERY (§ 32*)-ADVERSE PARTY-EXAMINATION BEFORE TRIAL.

The right of examination of an adverse party before trial is a substantial right, which should not be denied, if made in good faith, to obtain testimony, and in compliance with the Code requirements, though it should be denied where it is sought for some ulterior purpose.

[Ed. Note.-For other cases, see Discovery, Cent. Dig. § 46; Dec. Dig. § 32.*]

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

2. DISCOVERY (§ 36*)-EXAMINATION OF ADVERSE PARTY-SUBJECT-Matter. Where plaintiff pleaded a written contract for the sale of goods, and defendant admitted such contract, but claimed that it was part of a larger contract containing a warranty going beyond that set forth in the complaint, that the goods delivered did not comply with the warranty, and that he offered to return them after a reasonable time for inspection, so that defendant had the burden of producing evidence to establish his defense, and where defendant's affidavit showed that plaintiff had personal knowledge of the transaction, defendant was entitled to an examination of plaintiff before trial.

[Ed. Note. For other cases, see Discovery, Cent. Dig. § 49; Dec. Dig. § 36.*]

Whitaker, J., dissenting.

Appeal from City Court of New York, Special Term.

Action by Julius Blum against Louis Rosenbaum. From an order denying plaintiff's motion to vacate or set aside an ex parte order for his examination before trial, plaintiff appeals. Affirmed.

Argued November term, 1914, before LEHMAN, DELANY, and WHITAKER, JJ.

Riegelman & Bach, of New York City (Walter M. Schwarz, of New York City, of counsel), for appellant.

Brown & Boskey, of New York City (Meyer Boskey, of New York City, of counsel), for respondent.

LEHMAN, J. [1] I do not think that the order appealed from is in any way in conflict with the principles laid down in the opinion in the case of Kornbluth v. Isaacs, 149 App. Div. 108, 133 N. Y. Supp. 737. In that case the plaintiffs had brought an action for fraud, which the defendants denied under oath; yet in spite of this denial under oath, and the presumption that the defendants would not testify in court in contradiction of their denial under oath, I denied the motion to vacate an order for the examination of the defendants before trial. In my opinion in that case I attempted to review the earlier decisions of the various appellate courts, and there stated:

"A review of these decisions, however, discloses that the courts still regard the right of examination of an adverse party before trial as a substantial right, which should not be denied if it is made in good faith and for the purpose of obtaining testimony, though it should be denied if the order is sought for some ulterior purpose.'

It would therefore appear that, where a party has complied with all the requirements of the Code in moving for such an order, the order should not be vacated if the court can reasonably hold that the application was made in good faith.

[2] In the case before us the plaintiff has pleaded a contract for the sale of certain tubing and makes the written contract a part of the complaint. The defendant admits that he entered into this written agreement, but claims that it was only a part of a larger contract containing a warranty going beyond that set forth in the complaint, that the goods delivered did not comply with the warranty, and that he offered to return them after a reasonable time for inspection. It would appear, therefore, that the plaintiff can make out a prima facie

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

case by merely showing that he delivered the goods in accordance with the written memorandum or contract. The burden then rests upon the defendant of producing evidence to show that the written instrument is not the whole contract, that the goods delivered were not in accordance with the larger contract, and that he tendered them back. Not one of these matters need be shown upon plaintiff's affirmative case. The question then arises as to how the defendant will prove these matters. He has knowledge of these matters, but he need not prove them by his own testimony, which is, after all, interested testimony; but he must be permitted to obtain other testimony, if such testimony is in existence. He shows by his affidavit that plaintiff also has personal knowledge of the transaction, and we can certainly not presume that the plaintiff will testify falsely if put upon the stand. The defendant, therefore, if his allegations are true, has a right to presume that the plaintiff will consequently give testimony which will prove some or all of the matters which defendant must show. It is possible that the plaintiff may disappoint the defendant upon such examination. It is possible that some of his testimony may be distinctly adverse to the defendant; but it is precisely on account of these contingencies that the provisions for an examination before trial have been inserted in the Code, so that party may find out before trial whether he can rely on an adverse party giving the expected testimony without making him his own witness at the trial. The cases where such examinations before trial have been vacated are all cases where the party to be examined must, in order to sustain his case, present evidence to the contrary of the matters expected to be proven by the examination, or some other facts show that the examination is only for cross-examination. If we vacate this order of examination, confined, as it is, to matters upon which the defendant has at least the burden of producing evidence, then I think that no order can ever be granted, where the party seeking the examination swears to the facts on personal knowledge.

Order should be affirmed, with $10 costs and disbursements.

WHITAKER, J. (dissenting). Plaintiff's cause of action, as set forth in the complaint, is for the sum of $1,127.62, the purchase price of 25,058 feet of seamless steel tubing sold and delivered to the defendant pursuant to a written contract. This written contract provides for the sale and delivery of 100,000 feet of tubing, of which the tubing described above is a part. The contract stipulates the price and place of delivery, and provides, amongst other items, that the quality of the tubing is "to be soft as per sample submitted and to stand bending as per sample."

The defendant's answer denies the material allegations of the complaint, and sets up a separate and distinct defense. The defendant first denies that the written contract constitutes the whole contract between the parties, alleging that the written contract was part of the entire contract, which provided that the tubing was to be "in accordance with the sample submitted by the plaintiff to the defendant and accepted by him" prior to the execution of the written contract. De

fendant denies that the amount of tubing delivered conformed to the terms and specifications of the written contract, that the agreed price and reasonable value thereof is as set forth in the complaint, and that the amount due therefor became payable in accordance with the terms of the written contract. The separate defense repeats the terms of the written contract set forth in the complaint, and alleges that the written contract was made on the express condition and upon a warranty of the plaintiff that the tubing would in all respects be the same as the sample thereof submitted by the plaintiff to the defendant and agreed upon as a standard of tubing. This is merely a reallegation of the allegations contained in paragraph 1 of the answer in a different form. The separate defense further admits the order referred to in the complaint for the delivery of about 25,000 feet of tubing; that the tubing was delivered, although the quantity thereof is denied. It then alleges that the tubing so delivered did not conform to defendant's alleged sample, in that it was rusty and unpolished, that the defendant refused to accept the same and offered to return it, and that the plaintiff declined to accept it. It is in regard to all these allegations of the separate defense that plaintiff's examination before trial is sought.

While the Appellate Division of the Supreme Court, Second Department, has held, Judge Gaynor writing the opinion, that the right to examine a party before trial is absolute, when the person seeking the order has complied with the Code and rules of the court (see Shonts v. Thomas, 116 App. Div. 854, 102 N. Y. Supp. 324), still under the later decisions of the Appellate Division the rule seems to have been established that, where the examination is sought for the purpose of discovering the adverse party's testimony, in order to prepare evidence to meet it at the trial, or for the real purpose of crossexamination, the application should be denied. It appears by defendant's affidavit, upon which the order for examination of plaintiff was based, that:

"All the transactions herein were had with the plaintiff personally, who has knowledge of all the matters set forth in the defense."

This being so, the defendant must already know substantially what the testimony of the plaintiff will be; it being presumed, of course, that the plaintiff will testify truthfully, which is the only presumption upon which the court can proceed. Under the rules therefore recognized in the opinion of Mr. Justice Lehman in the case of Kornbluth v. Isaacs, 149 App. Div. 110, 133 N. Y. Supp. 737, which opinion was affirmed by the Appellate Division, I think that the order for the examination of the plaintiff before trial should not have been granted, and that the order denying the motion to set it aside should be reversed.

Order should be reversed, with costs.