123 Misc. 489 | N.Y. Sup. Ct. | 1924
The defendant sets up payment of the promissory note sued on, breach of the conditional oral agreement under which it was delivered, impossibility of performance of this agree
There is no authority for a blanket notice to examine all of the officers, directors, agents and employees of plaintiff. The notice is required to state the names of those whose examination is desired (Civ. Prac. Act, § 290, subd. 3), but the language applies to employees as well as managing agents, directors and officers. There is no good "reason for whittling down the language so that active employees engaged in the business of the corporation may not be examined except on the conditions that attach to witnesses. A station agent of a railroad, for instance, is not a managing agent but a mere employee and his testimony may be very material and absolutely necessary to prove the matters connected with the shipment of freight and a shipper should be entitled to obtain his testimony before trial. The legislature intended to make it possible for a party adverse to a corporation acting through a large number of agents and employees to get the evidence necessary to prove his case before trial. The process of limitation by construction which destroyed the value of the old provisions has already begun. Friedman v. New York Central R. R. Co., 206 App. Div. 169. There is no provision in the section relating to notice permitting a direction to produce books and papers. Ritzwoller v. Lurie, 204 App. Div. 768;
Notice modified by striking out the provision relating to the appearance of any officers or employees of plaintiff other than those named and the provision relating to the production of books and papers.
Ordered accordingly.