#### Thomas Gavin, Respondent, *v.*New York Contracting Company — Pennsylvania Terminal, Appellant.

First Department,

December 6, 1907.

Deposition — examination of defendant before trial — proper and improper questions.

In an action against a corporation to recover for personal injuries where the complaint alleges that the defendant failed to furnish a safe place to work in, ¡ that its locomotives, tracks, etc., were not in proper condition, and that it," failed to employ competent workmen or adopt proper rules, and that per- • sons exercising acts of superintendence were negligent, the plaintiff, in examin- j ing the defendant’s secretary before trial, is entitled to interrogate the witness j upon matters within his knowledge pertinent to the charges of negligence set . forth in the complaint.

Thus, he may ask pertinent questions on the following subjects: The construe- . tion and character of the tracks, roadbed, etc., at the place where the plaintiff’s injury occurred; the condition of repair of the locomotive; as to whether defendant had adopted rules, and what rules; what knowledge the witness had as to the incompetency of the plaintiff’s fellow-servants and the negligence of his superintendent. But he is not entitled to ask questions calling for the witness’ opinion as to the meaning of certain allegations in the answer, or upon any other subject, unless he was properly sought to be examined as an expert. So, too, it is improper to question him concerning other accidents happening in the prosecution of the defendant’s work, unless prior to the one in which the plaintiff was injured, and happening in the same way and same locality, so as to show notice of the dangerous situation. So, too, he is not entitled to ask concerning matters pertaining to other parts of the defendant’s work, nor may he ask the names of other witnesses to the accident.

The test of the propriety of questions put to the witness upon such examination is whether the testimony sought is material and proper to be used on the trial of the action.

Appeal by the defendant, the New York Contracting Company — Bennsylyania Terminal, 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 7th day of August, 1907, directing the defendant, through its secretary, to answer certain questions propounded upon an examination before trial.

*J. C.*Toole, for the appellant.

*Charles H.*Tuttle, for the respondent.

*644Houghton, J.:

The action is to recover damages by an employee for personal injuries .claimed to have been received through defendant’s negligence.

The negligence charged against defendant by the plaintiff in his complaint is that it failed to furnish him a safe place in which to work; in that its locomotive engine, tracks, roadbed and embankments were not in proper condition, and that it failed to employ competent fellow workmen ; and that it failed to adopt proper rules for the guidance of its workmen; and further that some person exercising acts of superintendence was guilty of negligence.

The plaintiff obtained an order for the examination of defendant through its secretary before trial. Upon such examination a large number of questions were objected to and not answered. Thereupon the plaintiff moved- for an order directing the witness to answer all of the questions, which was granted, from which the defendant appeals. .

Some of the questions were proper and some Were not, and the order directing that all of them should be answered must be reversed.

It was proper for the plaintiff to interrogate the witness upon - matters within his knowledge pertaining to the charges of négligence on the part of the defendant which the plaintiff had set forth in his complaint. It was, therefore, proper to ask the witness per- j tinent questions relating to the construction and character of the tracks, roadbed and embankment at the point Where plaintiff’s injury occurred; and as to the locomotive engine and its condition of repair; and also whether the defendant had adopted any rules and what rules for tile guidance of its employees; and also what knowledge ' the witness had with respect to the incomp.etency of plaintiff’s. immediate fellow workmen or their habitual recklessness of conduct which would also embrace the witness’s knowledge in that respect. concerning plaintiff’s immediate superintendent: It would be proper, for the plaintiff under the broad allegations of his complaint to give evidence of these facts upon the trial. An examination of a party before trial will not be granted unless the testimony sought.is material and proper to be used upon the trial. *(Oakes*v. *Star Co.,*119 App. Div. 358.) Therefore, the test of the propriety of the ques-*645tions put to a witness upon such- an examination is, whether the testimony sought is material and proper to be used upon the trial of the action. Hence it was improper to ask questions calling for the witness’ opinion as to what certain allegations in defendant’s 'answer meant, or upon any other subject, unless he was 'properly sought to he examined as an expert. It wás also improper to interrogate him as to reports of, and his knowledge concerning, other accidents happening in the prosecution of defendant’s work, unless they were accidents happening prior to the one from which plaintiff claimed his injury, and in the same way, and in the same locality, which might show notice of a dangerous situation. It was likewise improper to interrogate the witness concerning matters pertaining to other parts of defendant’s work than the immediate-"neighborhood of plaintiff’s accident; for it is of no moment to the 'plaintiff that the defendant was negligent on another part of its work, or that another place on the work was unsafe, and evidence concerning them would be improper upon the trial. Nor should the witness have been' asked the names of other witnesses to the accident. An order for an examination is for the eliciting of testimony ' and not to gain information as to who might be called as witnesses.

The court below should have selected such questions as were pertinent and proper to be answered, and confined itb order to directing-answers to them only.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the matter remitted to the Special Term for the entry of an order in accordance with this opinion.

Patterson, P. J., Ingraham, McLaughlin and Scott, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and matter remitted to Special Term as stated in opinion. Settle order. on notice.