Falon v. Keese

8 How. Pr. 341 | N.Y. Sup. Ct. | 1853

By the Court—Hand, P. J.

The statute requires that ten days’ notice of the intended examination of the assignor, “ specifying the points upon which he is intended to be examined, shall be given in writing to the adverse party.” {Code, § 399.) That was not done in this case. The notice set out the contract, and stated that it had been assigned to plaintiff; and that the plaintiff would examine his assignor. Not one word is said as to the points or subject upon which the examination was to be. It is not even stated that the suit was brought on the contract that had been assigned, or that any thing was or ever had been due on it. No information was given whether the examination was to be in respect to the making of the contract, or the labor done, or the payments made, or in relation to the house and garden, &c., or the assignment, nor indeed, that the examination will he in relation to the contract at all.

This practice of assigning demands not negotiable, for the purpose of making the assignor a witness, is liable to great abuses; and there should be, at least, a substantial compliance with the statute.

Judgment reversed.