121 N.Y.S. 399 | N.Y. App. Div. | 1910
Appeal from an order denying a .motion to vacate an order for examination before trial. The action is upon a policy of fire insurance issued by defendant to the F. P. Bhumgara Company, loss, if any, payable to plaintiff. It is alleged that the articles insured were destroyed or damaged by fire and that after the loss and before the commencement of the. action the Bhumgara Company for a valuable consideration assigned the policy and all moneys, due and payable thereunder to the plaintiff. The answer, in addition to the usual denials designed to put the plaintiff to its proofs, sets up a special defense that the Bhumgara Company and plaintiff made false and fraudulent representations to defendant respecting the loss which was, as it is said, inappreciable. It appears by affidavit that the defendant has accused N. F. Bhumgara, the president of the Bhumgara Company, with having made false and fraudulent proofs of loss, and has caused him to be arrested and indicted upon that charge. The order sought to be vacated provides for the examination of plaintiff, as a party to the action, through George B. Bruce-Webster, described as its agent for the State mf New York, and of the F. P. Bhumgara Company, a person not a party to the action, through its president, N. F. Bhumgara. It is irregular, if not actually improper, to include in a single order a provision for the examination of a party to the action and one for the examination of a person not a party. While there are certain facts necessary to be shown which are common to applications for both examinations, there are other facts which are not common, but are applicable to only one case or to the other. (Diefendorf v. Fenn, 125 App. Div. 651.)
There appears to be neither authority nor propriety for examining
The order should be reversed, with ten dollars' costs and disbursements, and the motion granted, with ten dollars costs.
Ingraham, P. J\, .Laughlin, Clarke .and Miller, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.