Packer v. Hart

— The strong case made by the respondent entitles her to learn whether to sue De Jonge & Co. or the railroad as the principal answerable for the acts of Hart in operating the steam shovel which ruptured the water mains through which was respondent’s water supply. But such an order for examination of Hart or De Jonge cannot be had before action has been begun, unless to perpetuate testimony. (Matter of Dain’s Sons’ Co. v. Lowry, 146 App. Div. 918; affd., 204 N. Y. 623.) Here the purpose is to find out whom to sue, which is not a case to examine one departing, sick or infirm, who will otherwise…