(dissenting). I dissent and vote for affirmance. (See Meehan v. McCloy, 266 App. Div. 706; Bearor v. Kapple, 24 N. Y. S. 2d 655.) The statement phrased and written by defendant’s insurance company investigator was signed by the infant plaintiff and his mother and obtained upon the representation that it was to be used to effect a substantial settlement of the infant’s serious injury. Infant-plaintiff and his mother, who may be assumed to have been off guard, were not represented by an attorney and do not know what was in the statement, and sought the inspection which in the exercise of discretion was allowed below. Ho affidavit of the investigator is furnished, the opposition affidavit being by the insurance company lawyer who by virtue of the indemnity policy represents the defendant. The error claimed is that discretion was abused as infant plaintiff and his mother may give a different version on the trial and falsity will appear when they are faced with the statement obtained by the investigator. Despite any suspicion to the contrary, truth under oath and not falsity must be expected. The justice below, whose discretion as exercised is attacked as error, was not required to anticipate, as defendant desired and urged he should, that the infant plaintiff and his mother would perjure themselves and escape if they read what the investigator had written for them to sign, and be caught in their crime if defendant’s insurance company could keep the statement under cover until the trial. The justice below was warranted to indulge a presumption of innocence in favor of plaintiff to which the law itself • entitled him. In seeking to inspect the statement in advance of trial, plaintiff merely invoked the court’s discretion in a matter of procedure and not of substantive right. Procedure is the machinery devised to expedite the business of courts. Properly regulated it serves that purpose and is an aid to litigants in the ascertainment of truth and the avoidance of surprise. Concerned with substantial *694merits and the attainment of justice, courts regard rules of procedure as a means to that end, and not as the basis of ultimate decision. Procedural machinery to serve its proper purpose must be equally available to all litigants, none of whom should be regarded as acting in bad faith on the ipse dixit or self-serving arguments of an adversary. Rules essential to due process must be distinguished from rules intended to provide for the orderly despatch of business. Here we are considering a rule of pro cedure which is part of the pretrial machinery devised to limit and define issues of fact and conserve time which otherwise would be spent upon the trial in contesting the truth of each party’s testimony and evidence and arriving at the real issue to be decided. Even if as a general principle it might be thought that withholding a signed statement from a witness until trial might tend to insure adherence to truth, the particular circumstances of each case must always be the guide of the judge who has the responsibility of exercising judicial discretion. Pretrial aids, helpful as they may be to prompt determination, should never be permitted to frustrate the main objective, which is a true and just decision, and controversy over the use of. such aids may obscure the merits of the case. Litigation is not a game of chance or skill turning upon the adroitness or slips of counsel, and a self-phrased written statement obtained under the circumstances disclosed here should be regarded in that category. The clever activities of a wily investigator in obtaining such statements from infants and their unwary mothers are fraught with the possibility of great evil. Such statements concealed until trial are both a threat to peace of mind and a hidden trap to be sprung upon the victims when they give their testimony. I am convinced that the exercise of discretion by the justice below should not be disturbed.
Hecht, J., concurs with Eder, J.; Hammer, J., dissents in opinion.
Order reversed, etc.