109 N.Y.S. 113 | N.Y. App. Div. | 1908
Lead Opinion
Appeal from an order of the Special Term .denying a motion to vacate an order obtained by the defendant for examination of the plaintiff, a corporation, and certain officers thereof before trial and after issue joined. The action is for damages for breach of contract.
The plaintiff alleges in its complaint that the defendant failed to supply it with certain cedar pails needed for use in its candy business; that because of defendant’s failure to deliver these pails
■ The examination which the defendant desires, as appears by- the affidavit submitted upou its application, is for the purpose of obtaining the items and the details which go to make.up the damages claimed by the plaintiff. It is, therefore, an attempt to obtain information before the trial of necessary parts of the plaintiff’s case which the plaintiff must establish by proof in order to succeed. There is nothing asked for which is material and necessary to the defense interposed. It is even averred in the affidavit “ That in the opinion of deponent it is necessary and material that the annexed order, in order that -the facts in reference to plaintiff’s alleged cause of action * * * may be properly presented to this court •* * * should be granted.”
The Code provides that the examination of an adverse party may be obtained when the testimony .of such person is material and necessary for the party making such application for the prosecution or defense of such action. (Code Civ. Proc. § 872.)
This court said in Dudley v. New York Filter Manufacturing Co. (80 App. Div. 164): “The rule, however, with reference to allowing the examination of a party is quite different. Such examinations are never allowed where the object is to obtain information concerning an adversary’s case or defense; nor are they allowed merely for' the purpose of enabling a party to prepare for trial. * * * They are only allowed where the object.is to obtain evidence essential to the moving party’s case or defense, and when it fairly appears that it is the intention of the party to rise the examination upon the trial. * * * Where it appears that the testimony is material and is necessary to enable the applicant to establish his own case or defense, it is no objection to the examination that it may disclose his adversary’s case.” This proposition. was cited with approval in McKenna v. Tully (109 App. Div. 598).
As it is no part of the defendant’s case to establish the items of the plaintiff’s damage, the order providing for the examination- of the plaintiff through its officers for the purposes here disclosed was not authorized.
The order appealed from should, therefore, be reversed, with ten dollars costs and disbursements, and the original order granting the examination vacated and set aside, with ten dollars costs to the appellant.
Patterson, P. J., McLaughlin and Scott, JJ., concurred; Ingraham, J., dissented.
Dissenting Opinion
I think this order in requiring the plaintiff to produce upon the examination all its books and papers cannot be sustained, as the affidavit was not sufficient to require the production of any particular book or paper as necessary for the.examination of the plaintiff. It should, therefore;, be left to the referee to direct the production of any book or paper that is necessary for the proper examination of the witnesses. I think, however, that the affidavit was sufficient to justify the court in directing the plaintiff to be examined as a witness before trial. It is true the principal affidavit upon which the order was granted was made by the defendant’s attorney, but this affidavit was corroborated by the affidavit of the defendant’s representative in the city of New York, and the attorney and this representative were the only ones who knew anything about the action or had cognizance of the facts required to be sworn to. The defendant was a corporation and could not make an affidavit. It had, therefore, to be made by its officers; agents or representatives, and these two representatives, its attorney and agent in New, York, were the only persons who could really depose to any-facts
I, therefore, think the order should be affirmed. ■
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. .