I dissent for the reason that the machine of which an inspection has been ordered is not alleged to be in any way connected with the plaintiff’s cause of action.
The plaintiff was injured by the explosion of a seltzer water bottle. The injury was caused by the explosion, and the negligence charged in the complaint against the respondents is that they “so carelessly, negligently, unskillfully, wrongfully and unlawfully filled and dangerously charged the said seltzer water bottle so furnished to and used in the said liquor saloon on said day that the same exploded * * ”
There is not a reference in the complaint to the machine, and it is conceded in the brief, presented by the appellant that he did not even know of its existence until the defendant Oallanan was examined before trial.
ÍSTo facts are stated in the moving papers to the effect that *165the machine was defective, out of repair or that it caused the explosion.
Before plaintiff could have an inspection he had to establish that the object sought to be inspected was in some way the cause of or contributed to his injury. It may be that the bottle exploded because subjected to too great a pressure. The machine cannot speak, and, if that were the cause, it will have to be established not by the production of the machine but by a witness who knows and can state the fact.
A party ought not to be annoyed and subjected to the trouble and expense of producing an object for inspection unless it appears from facts stated that such object or its condition is material to or connected with the cause being tried or defended. It does not here appear that the production and inspection of this machine is in any way material to the plaintiff’s cause of action or if produced for inspection will enable him in any way to establish his cause of action.
I think the motion, therefore, was properly denied and the order appealed from should be affirmed.
Ingraham, P. J., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.