114 N.Y.S. 211 | N.Y. App. Div. | 1908
Lead Opinion
The plaintiff brings this action to recover commissions alleged to have been fraudulently withheld from him by the defendants, who under various contracts running back to 1901, were under obligations to keep track of and to account to him for sales made within the territory assigned to him upon which he was entitled to commissions whether the sales were made by the plaintiff directly or not. He has been granted an order for the examin|tion of the defendants, together with their books, papers, etc., in connection with such examination, and the defendants appeal from such order.
Jenks, Hooker and Hiller, JJ., concurred; Gaynor, J., concurred in separate opinion.
Concurrence Opinion
The order was not obtained ex parte, but on notice of motion. The plaintiff avers in his affidavit on which the order was obtained “ that the sole and only purpose of such testimony and the request of the examination of the defendants herein is to prepare for such trial ” ; and the motion should have been denied for this. A party cannot be examined before trial for any such purpose (Diefendorf v. Fenn, 125 App. Div. 651). The affidavit seems to have been prepared with very little, if any, familiarity with section 872 of the Code of Civil Procedure and such of the decisions thereunder as are any longer controlling. But I am not prepared to vote to reverse the order on account of the other deficiencies in the affidavit which the appellant points out, viz., (1) that it does not give the name and residence of the defendant’s attorneys, (2) or state the nature of the judgment demanded, (3) or of the defense, i. e., answer. The complaint and answer were made part of the papers on which the motion was made, and they show all of these things much better than an affidavit could do it. And why, if it comes to that, should the affidavit state the names of the parties and of their attorneys—
Order reversed, with ten dollars costs, and disbursements, and motion denied, with costs.