109 Misc. 191 | N.Y. Sup. Ct. | 1919
In the complaint in an action for damages for false and fraudulent representations, it is alleged, with other things, that the defendants falsely represented to plaintiff “ that the defendants intended to construct concrete pavements and sidewalks upon said property as soon as the weather would permit in the spring of 1917. That concrete sidewalks, sewers, water mains and gas mains would be laid in the streets, avenues and boulevards upon said tract at the same
In plaintiff’s affidavit, upon which the order to examine defendant was granted, these matters are set out together with reference to the complaint and the answers of the various defendants, and further, ‘ ‘ that it is necessary for plaintiff to ascertain on examination of the said defendant, Eyer, before trial, just what was done by him in connection with these matters; ” the defendant challenges the propriety of this provision of the order upon the ground that the alleged false statements were not statements of material existing facts, but were so-called promissory statements and were fraudulent or otherwise dependent upon the state of the mind of the person making them at the time made. That, therefore, the testimony of the acts of the defendant thereafter, whether in compliance with said representations or contrary thereto, is inadmissible.
In the case at bar the question is whether or not the testimony of the defendant upon the subjects set out in the affidavit is material and necessary to the plaintiff upon the trial of this action. It seems to me it is. If the representations here claimed to have been made and relied upon were false, defendant not intending to do as he represented, such false statement may be deemed the statement of a material existing fact because it falsely represented the state of his mind. Deyo v. Hudson, 225 N. Y. 602, citing Adams v. Gillig, 199 id. 314; Ritzwoller v. Lurie, 225 id. 464. And testimony of defendant’s conduct thereafter is important upon this issue.
The order was rightly granted and must stand. The motion to vacate is denied, with ten dollars costs.
Motion denied, with ten dollars costs.