208 A.D. 503 | N.Y. App. Div. | 1924
The action is for libel. The plaintiff claims damages for injury in her occupation as a nurse and in her good name and reputation because of matter concerning her which the defendant admittedly published in its newspaper. This article stated, in substance, that plaintiff, a nurse, was arrested after poison had been discovered in food given to her patient, and that accusations had been made against her in Syracuse that she caused her patient to be strapped to her bed and fed poison in her food.
The answer is only incidentally before us, but it does not seem to contain a full and complete justification as broad as the charge. While the particular charges against plaintiff in the published
The defendant gave notice to plaintiff that her testimony would be taken before trial on a vast number of subjects. The defendant alleges this examination is necessary for its defense. The motion to vacate the notice has been denied at Special Term, though a slight modification thereof was made.
In this department we believe that the provisions of the Civil Practice Act (§ 288 et seq.) relative to the examination of a party before trial should be made useful and efficacious when the testimony is material and necessary to the prosecution or defense of the action. (MacDonald v. Wills & Co., Ltd., 199 App. Div. 203; Brown v. Brown, 203 id. 658; Harding v. Harding, Id. 721; Marine Trust Co. v. Nuway Devices, Inc., 204 id. 752.) The liberal interpretation we have given the statute does not, however, permit a party unlimited freedom in examination into the cause of action or defenses of the opposing party, nor will it permit what is in effect a cross-examination of such party for the purpose of attacking his credibility. There still remains in the court a discretion to limit the scope of the examination to testimony material and necessary to a determination of the issues. (Brown v. Brown, supra; Shaw v. Samley Realty Co., Inc., 201 App. Div. 433; Samols v. Mayer, 120 Misc. Rep. 516.) Ordinarily a defendant is not entitled to examine the plaintiff before trial concerning the issues which the latter must first establish before he can recover. (Curtis v. Searles, 206 App. Div. 287.) Nor may the defendant after setting up in his answer matter largely irrelevant, which, if untrue, would be scandalous, attempt to establish its truth by what amounts to cross-examination of the plaintiff before trial.
The learned court at Special Term seems to have decided the motion under a misapprehension of our decision in Marine Trust Co. v. Nuway Devices, Inc. (supra). In that case it was sought to hold one Mather liable as indorser on a promissory note. The record disclosed that on the trial he would have the burden of establishing by witnesses that due presentment, protest and notice thereof were not made. We held that he might examine tha
It would serve no useful purpose to state in detail in this opinion the subjects in the notice which we hold relevant and those which we deem impertinent to the issue between the parties. We will content ourselves by stating general principles and will provide in the order the portions to be struck from the notice.
The order should be modified, striking out certain portions of the notice of examination, and as modified affirmed, without costs.
All concur.
Order modified by striking out certain provisions of the notice for examination, in accordance with the opinion, and as so modified affirmed, without costs of this appeal to either party.