Commercial Publishing Co. v. Beckwith

68 N.Y.S. 600 | N.Y. App. Div. | 1901

Per Curiam :

It appears from the affidavits that the money' sought to be recovered in this action was collected by the defendant from various, persons who were debtors of the Memphis Appeal Company, and at different times after the 28th of February, 1896. Heither the names and residences of these persons nor the amount collected from each one of them, nor the times when the several collections, were made, áre known to the plaintiff, but these facts are within the personal knowledge of the defendant. It is evident that with the testimony of the defendant upon all these questions the plaintiff will be able to make out a good cause of action, and that without his testimony it is difficult if not practically impossible for it tO' prove what is alleged in the complaint. The evidence of the defendant, therefore, is material and necessary for the plaintiff to have upon the trial of the action. It is not difficult to surmise that if the plaintiff should be left until the trial before having an opportunity to examine the defendant as to these collections, it might be seriously crippled in its effort to ascertain the facts, and if the defendant’s recollection should happen to fail at the trial, the plaintiff would be left in the lurch and unable to establish its case. It is not beyond the bounds of possibility also that the defendant might not feel called upon to appear on the trial, in which case the plaintiff would undoubtedly be without remedy. Even if the defendant stated that it was his present intention to be present at the trial, that would be no reason why the examination should be refused. (Presbrey v. Public Opinion Co., 6 App. Div. 600; Press Publishing Co. v. Star Co., 33 id. 242.) This case is not within the reasoning nor is it controlled by the ease of Jeffries v. Brown (57 App. Div. 633.) The order should be reversed, with ten dollars costs and disbursements, and the motion to vacate the order for the examination of the defendant denied, with ten dollars costs.

Present — Yak Brunt, P. J.,. Bumsey, O’Brien, Ingraham and Hatch, JJ.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.