Miller v. Kent

59 How. Pr. 321 | N.Y. Sup. Ct. | 1880

Davis, P. J. —

An order was made in this case by Mr. justice Laweexce, requiring the defendant Kent to appear and be examined as a party before trial, under section 873 of the Oode of Civil Procedure. A motion was afterward made at special term, at chambers, to vacate the order of examination, which motion was denied, and from the order entered upon such denial this appeal was taken. The point was made on this appeal that the order to show cause on this motion did not specify the irregularities or grounds upon which it was sought to set aside the original order, and that, for that reason, the order appealed from should be affirmed; but it does not appear that any such objection was made or suggested in the court below, and it does appear that the motion was heard and disposed of upon the merits. Under such circumstances the appellate court should not listen to the objection, because if made below it might readily have been obviated by allowing the statement of such irregularities to be inserted in the notice, and granting a new order to show cause upon the spot.

On looking into the merits of the motion upon the papers presented we are satisfied that the plaintiff was entitled to the examination. Issue had been joined and the case was ready for trial as between the parties to the issue. Enough was stated in the affidavit to show the materiality- of the examination. Other facts and conclusions were stated, by way of argument, tending to show the materiality of the testimony as a matter of preparation to meet the alleged defenses, but that fact should not, under the circumstances of this case, defeat the examination. The plaintiffs show to our satisfaction that they could not get such an account of the transactions of the defendants, alleged to have been made on their behalf, as they were clearly entitled to. A commission merchant or broker has no right to conceal from his customer any portion of his business and dealings in relation to the property alleged to have been bought and sold; and where he withholds the fullest information on that subject, the right to examination before trial in an action brought to recover alleged profits, or to adjust the unsettled accounts, should be fully accorded. We are not at all satisfied with the good faith of the alleged proffers of the examination of the defendants’ books, &c. The disingenuousness of the attempt thus to defeat the examination of defendant as a witness must have struck the (court below as it does this court. We think the order should be affirmed, with ten dollars costs and disbursements.

Order affirmed.

Beady and Babbett, JJ., concur.