133 N.Y.S. 765 | N.Y. App. Div. | 1912
For a first cause of action plaintiff alleges that Virgilio Del Genovese and defendant entered into an agreement in October, 1890, by the terms of which defendant was to become the manager of a certain lodging house known as 2G8 Bowery, in the borough of Manhattan, a leasehold interest in which, together with the furniture and lodging-house equipment, belonged to the said Virgilio Del Genovese. For his services defendant was to receive one-half of the net profits of the enterprise during the continuance of the lease or any renewals thereof, and all materials and furnishings bought for use therein were to be the property of the said Virgilio. It is alleged that the agreement was in writing, and that a paper annexed to the complaint is a copy thereof. It is further alleged that defendant became manager, and continued to manage said property so long as Virgilio was the lessee thereof, namely, from 1890 to 1902, when defendant took a lease of the same in his own name, but in reality as agent and in trust for said Virgilio. It is further alleged that net profits resulted from the enterprise, the amount of which is unknown, and that after retaining one-half thereof a large sum still remained due and owing from defendant to said Virgilio. It is alleged that the said Virgilio died January 27, 1907; that on November 9, 1908, plaintiff was appointed administrator of his estate; that a demand was made upon defendant for an accounting, and that such demand was refused. For a second cause of action it is
For answer to the first cause of action defendant admits making an agreement with Virgilio respecting the said leasehold property, but denies that the agreement is correctly set forth in the complaint. For affirmative defenses payment is pleaded and also the Statute of Limitations. In answer to the second cause of action all the allegations therein contained are denied except the death of Virgilio and the demand by plaintiff, and affirmative defenses are pleaded, consisting of the Statute of Limitations, the Statute of Frauds, a defect of parties defendant and that plaintiff has not legal capacity to sue. The answer then sets up eleven counterclaims arising out of loans and advances made by defendant to said Virgilio, indebtedness arising on bonds and promissory notes made by bim and the conversion of certain personal property. The reply puts in issue all the allegations of the counterclaim and pleads payment and the Statute of Limitations.
On the 3d of October, 1911, an order was obtained ex parte directing defendant to appear and be examined concerning the issues raised by the pleadings. Subsequently a motion was made to vacate and set aside said order or to modify the same. This motion was denied, and from the order thereupon entered this appeal is taken.
To sustain an order for the examination of an adverse party after issue joined in an action it must affirmatively appear that such examination is material and necessary for the person applying therefor in the prosecution or defense of such action. (Code Civ. Proc. § 872, subd. 4; General Rules of Practice, rule
The order should be modified so as to limit the examination of defendant so far as the first cause of action is concerned to the terms and conditions of the agreement with reference to the leasehold property referred to therein, to the fact of the renewals of the lease, if any were made, and the terms and conditions thereof. So far as the second cause of action is concerned, it should be limited to the fact of any agreement relative to any property referred to therein and, if any such agreement existed, to the terms and conditions thereof and the property transferred thereunder. As so modified, the order appealed from should be affirmed, without costs.
Jenks, P. J., Hirschberg-, Woodward and Bich, JJ., concurred.
Order modified in accordance with opinion, and as so modified affirmed, without costs. Order to be settled before Mr. Justice Burr.