107 N.Y.S. 893 | N.Y. App. Div. | 1907
The action is brought to recover the • sum of $3,000 paid to the defendant for certain shares of stock off a corporation which it is alleged plaintiff was induced to purchase by and through false and fraudulent representations made to him by the defendant with intent to deceive, cheat and defraud; that the representations made to the plaintiff are in writing in letters and telegrams which purport to be from the defendant, and the plaintiff desirés to. examine the defendant to prove the writing of these letters and the sending of the telegrams. It is apparent that this evidence is most material and is necessary for the plaintiff upon the trial of the .action, and the fact as to whether the defendant wrote the letters and sent the telegrams can be proved by the defendant. Every fact required by section 872 of the Code of Civil Procedure appears. The materiality Of the defendant’s letters and telegrams' as proof upon the trial to prove the representations must be conceded, and the fact that the defendant would testify as to his handwriting and whether he wrote and sent the letters and telegrams can certainly be inferred:
The only question presented is whether the order should have been granted upon the affidavit of plaintiff’s attorney or whether it required an affidavit of the plaintiff personally. In the affidavit the plaintiff’s attorney, who was to try the case and had charge of its preparation, deposes that the plaintiff must prove the representations made by the defendant’s letters., He certainly is presumed to have knowledge of the proof required to prove the plaintiff’s case, and that fact being established, the other conclusions that the testimony of defendant as to whether or not he wrote these lettérs and sent the telegrams will be material upon the trial. The reason given for the affidavit not being made personally by the plaintiff is stated to be the fact that he resides in the State of Tennessee and is not within the State of Hew York. . I think, that is a sufficient excuse for the making of the affidavit by the attorney and counsel who was to try the case and necessarily had knowledge of the proof required. It is a mere useless formality in such a case to require the client, who cannot have the knowledge that his counsel, has as to the facts that are necessary to prove and as to. the nature of the proof necessary to sustain plaintiff’s case, to make an affidavit.
The examination of the defendant should, however, be confined •to the letters and telegrams sent by the defendant, and the order is modified so as to so limit such examination and as so modified affirmed, without costs.
Patterson, P. J., Clarke, Scott and Lambert, JJ., concurred.
Order modified as directed in opinion, and as modified affirmed, without costs. Settle order on notice.