17 Misc. 2d 768 | N.Y. Sup. Ct. | 1959
In this separation action by plaintiff Betty J. Berlin, and in which defendant Arnold 0. Berlin has counterclaimed for divorce, the plaintiff has served a notice of an examination before trial of defendant concerning his occupation, earnings, financial status and ownership of personal and real property from the year 1956 to April 14, 1959, the date of the notice. The notice also requires defendant to produce upon the examination all of his personal books and papers relative to the same items and period. Defendant moves for an order vacating the notice of examination on the grounds that in a matrimonial action the plaintiff has no right to a pretrial examination concerning defendant’s assets and income as ability to support is not a material issue until plaintiff has established her right to an interlocutory decree of separation.
Precedents in this State are not in agreement on whether the wife should be allowed in a pending matrimonial action to examine her husband concerning his assets and income. (Kirshner
The purpose of an examination before trial is to afford both parties a fair opportunity to obtain such necessary and material facts pertaining to anticipated trial issues as good faith, legitimate purpose and expedition of the judicial process dictate. (Civ. Prac. Act, § 288; Dorros, Inc., v. Dorros Bros., 274 App. Div. 11.) A general examination before trial in a matrimonial action ordinarily is not allowed. The reasons therefor are not applicable to an examination confined to the defendant husband’s assets and income, which are necessary and material facts to the’ final determination of an action in which relief is granted. (Jasne v. Jasne, supra.) The granting of such a limited examination is not only in accord with modern procedural practice, but also serves to avoid trial delays. (See Yudell v. Yudell, 282 App. Div. 649.)
Defendant also contends that he fears the examination could exceed its scope and result in a “ fishing expedition ” into the merits and substantive issues of both the separation action and his counterclaim for divorce. Where the scope of the examination is expressly limited to the husband’s financial condition and ability to support, the defendant’s fears of a fishing expedition are groundless. (See Sachs v. Sachs, 11 Misc 2d 644; Vlassopulos v. Vlassopulos, 10 Misc 2d 99, supra.)
Defendant’s motion should be denied. As the parties were married on December 22,1957, no reason appears for an examination of defendant concerning his occupation, earnings, financial status and ownership of personal and real property during the years 1956 and 1957 and the examination should be directed to Ms occupation, earmngs, financial status and ownership of personal and real property during 1958 and to the date of the examination in 1959. Books and papers concerning the same items need only be produced for the same period. Plaintiff may reschedule the examination upon 10 days’ notice.
Plaintiff’s counsel should submit order accordingly.