(dissenting). Were this a case of first impression, the order under review might very well be affirmed, especially inasmuch as the answer has cast upon the plaintiff the burden of proving facts which can most easily be established by those officials of the city whose examination is sought. But the question is no longer an open one for this court, in view of the decisions in Davidson v. City of New York (221 N. Y. 487) and Bush Terminal Co. v. City of New York (259 id. 509). “ Stare decisis guides the courts ” (Matter of Laudy, 161 N. Y. 429, 435), as it did when Weinberg v. City of Troy (256 App. Div. 1028) was before the learned Special *21Term, reversal of whose decision therein by this court, however, constrained the same learned justice to grant the order in this case; yet it is equally incumbent upon this court to follow the rule which the Court of Appeals has reiterated. Upon the authority of those two decisions, recognized as having established for the courts of New York a practice different from that which now obtains under the new Federal Rules of Civil Procedure (Joy Mfg. Co. v. City of New York, 30 F. Supp. 403), examination of a public corporation before trial has recently been denied by Mr. Justice Hallinan (Rucker v. Bd. of Education of City of New York, 172 Misc. 731) and by Mr. Justice Steinbrink (Lovero v. Home Owners’ Loan Corp., Id. 754) upon the authority of Mr. Justice McGeehan’s decision in Smith v. Citizens Savings Bank (166 id. 843), where the earlier controlling cases are cited, as they are also in Mack v. School Board of Briarcliff Manor (171 id. 165).
Far from upholding the doctrine of stare decisis invoked in the majority opinion, affirmance of the Special Term’s order herein must inevitably flout that wholesome rule. “ Certainty is of the very essence of the law. Shifting and changing rules or principles do not constitute law. The avoidance or prevention of litigation through the establishment by the courts of fixed and certain rules is a useful and beneficent effect of the litigations had.” (Matter of Grifenhagen v. Ordway, 218 N. Y. 451, 458.) “ Decisions of a court of last resort are to be regarded as law and should be followed by inferior courts, whatever the view of the latter may be as to their correctness, until they have been reversed or overruled.” (15 C. J. 920.) “ The decision of the tribunal of last resort of the State must be considered the law of the land, until it shall have been reversed.” (Rochester & Genesee Valley R. R. v. Clarke National Bank, 60 Barb. 234, 250.) “ It is not for the inferior court to disregard the decisions of the court of last resort; but, on the other hand, it is their duty to give them full effect, whatever their views may be as to the correctness or wisdom of such decisions.” (Costello v. Syracuse, etc., R. R. Co., 65 Barb. 92, 100.)
To the suggestion in the prevailing opinion that the two decisions of the Court of Appeals have become obsolete with the passage of time, there are two answers: (1) Since the decision in the Bush Terminal case was announced, the Legislature, by chapter 512 of the Laws of 1937, has amended section 289 of the Civil Practice Act, but without providing specifically for the examination of a municipal corporation, and this court has held that a decision which has stood the test of years, without inviting legislative alteration, is entitled to the respect of this court (Bradley v. Village of Union, 164 App. Div. 735); (2) considered opinions of the Court of Appeals do not lose their authority by age alone, but are to be followed *22(Central Trust Co. v. Falck, 177 App. Div. 501, 508), unless and until that court itself limits or overrules them. (Town of Venice v. Breed, 65 Barb. 597, 606, 607; Titus v. Booker, 216 App. Div. 608, 612; affd., 244 N. Y. 421.) In 1900, before “ a reconstruction in the membership of the court ” (Graves v. New York ex rel. O’Keefe, 306 U. S. 466, 487), Presiding Justice Parker, dealing with a contention that an earlier decision by the Court of Appeals was no longer authority because of a subsequent enactment by the Legislature, observed that the argument should be addressed not to this court but to the Court of Appeals. (Scott v. King, 51 App. Div. 619.)
In presenting the Judiciary Article to the Constitutional Convention of 1894, Elihu Root said: “ The public interests demand that the law should be settled; that it should be the same for the whole State; that it should be a consistent and harmonious system; that it should be declared clearly and authoritatively by some supreme power, in order not merely that litigants may have their right, but that the whole people may know what is the law, by which their contracts and conduct shall be regulated, and by the observance of which they may, if possible, keep out of litigation. It is this necessity alone which justifies the existence of a Court of Appeals superior to the appellate tribunals which first review the decision of trial courts.” (2 Revised Record, p. 464.) The report of the committee on the judiciary to the Constitutional Convention of 1915 regarded “ the judicial function of the Court of Appeals as that of settling the law for the whole State and maintaining one consistent and harmonious system of justice ” (2 Revised Record, p. 1952), and in committee of the whole, Mr. Wickersham said: “ We consider the Court of Appeals as a court of law created for the purpose primarily of settling the law of the State.” (3 Revised Record, p. 2421.) What becomes of the ideal function of the Court of Appeals as the final arbiter of the law of this State if its decisions are to be followed at Special Terms in the First and Second Departments but nullified in the Third Department?
Since an affirmance of the order below will result in an intermediate order, no appeal therefrom may be taken to the Court of Appeals, save with the permission of this court on a certified question. (Civ. Prac. Act, § 588, subd. 4; Cohen on the Powers of the Court of Appeals, § 78.) To be sure, on an eventual appeal to the Court of Appeals from an adverse final judgment the propriety of this court’s affirmance of the order of the Special Term may be brought up for review (Civ. Prac. Act, § 580), but that can come to pass only after a trial wherein the depositions of defendant’s officials will have been read in evidence, with the possibility that the Court of Appeals, adhering to its earlier decisions, may hold that they *23should not have been taken. In view, therefore, of the dissent of two members of this court in Weinberg v. City of Troy (supra), and the conflict between the decisions in the First and Second Departments above noted and the decisions in this Department, affirmance of the order below should be accompanied by leave to appeal to the Court of Appeals upon substantially the same question certified in Davidson v. City of New York (supra), viz.: “ Do the provisions of sections 288 and 289 of the Civil Practice Act apply to a municipal corporation as a party to an action?”; else, there must be a retreat from the proud maxim that ours is a government of laws and not of men.
Order affirmed, with ten dollars costs and disbursements, and the matter remitted to the Albany Special Term to fix the time and place of hearing.