| N.Y. Sup. Ct. | Jul 2, 1891
This is an appeal from an order denying a motion to vacate an order for the examination of the defendant before trial to enable the plaintiff to frame his complaint. It appears from the affidavit upon which the order for tile examination was based that the defendant, who was a stock-broker, was instructed by the plaintiff to purchase for him 100 shares of the stock of the New Jersey Central Hailvoad, and was furnished with the money to pay for the same. Thereafter the defendant' loaned .the same with the assent of the plaintiff, and subsequently failed, and made an assignment of his property for the benefit of his creditors. This action is based upon that transaction; but whether the complaint will charge the defendant with a conversion of the stock after its purchase, or with embezzlement of the money received for the purchase of the stock, or with embezzlement of the money received on a loan of the stock, will depend upon facts within the knowledge of the defendant, and unknown to the plaintiff. The affidavit is full and sufficient, and states that the deposition of the defendant is necessary to enable the plaintiff to frame his complaint, and for use at the trial, and states facts from which it is readily seen that such statement is true, and that the examination is necessary. It is urged in opposition to the order that the testimony sought, if elicited upon the examination, might subject the defendant to a criminal prosecution, but we can readily perceive that there are many facts within the knowledge of the defendant which he can disclose witli impunity; and, if he desires to plead his privilege, he can do so upon the examination. The ease of Kinney v. Roberts, 26 Hun, 166, is not an authority adverse to this view, because in that case there was no testimony sought to be elicited from the party except such as would subject him to a criminal prosecution, or render him infamous. The affidavit being formally correct, and the facts sought being entirely within the knowledge of the defendant, we think the order for his examination was proper and valid. The order should therefore be affirmed, with $10 costs and disbursements.