131 N.Y.S. 176 | N.Y. App. Div. | 1911
The complaint in'this action alleges that between February 27, 1903, and July 6, 1907, defendant Wocker was the treas- • urer of the Point Pleasant Hook and Ladder Company, a cor
A motion to examine a party to an action before issue joined, for- the purpose of framing, a pleading, will be denied when the moving papers show that the party seeking the examination already has sufficient' knowledge to enable him to plead. (Thompson v. Haigh, 134 App. Div. 614; Matter of La Grave, 132 id, 108; Diefendorf v. Fenn, 125 id. 651; Waitzfelder v. Moses Sons & Co., 120 id. 144.) Defendant Wocker in his moving papers states that,'while he does not know whether he paid out the specific sums mentioned in the complaint, “he does know that he never paid out any moneys of said company except legally and with proper authority; ” that while he does not know the amount which was in his hands on the 31st day of August, 1905, he does know that “he turned over to his successors in office all the moneys belonging to said company which he had in his hands.” And again he states “that while he was treasurer of said company all moneys received by him belonging to the. said company was [s¿c] deposited in the company’s account, and nothing was drawn therefrom, except as duly ordered and authorized by the' said
The orders appealed from should be reversed, with ten dollars costs and disbursements, and the. motion to set aside the order for examination granted, with ten dollars costs.
Jerks, P. J., Carr, Woodward and Rich, JJ., concurred.
Orders reversed, with ten dollars costs and disbursements, and motion to set aside the order for examination granted, with ten dollars costs.