104 N.Y.S. 796 | N.Y. App. Div. | 1907
The action is brought to recover $10,000 on a nóte alleged to-have been made by the copartnership of A. Moses Sons & Co., ■ indorsed by the defendants for value to the order of one Baron and before maturity.indorsed and transferred by the said Baron to the plaintiff,. The order for examination- provides that the plaintiff be examined as to the facts and. circumstances which are within his knowledge concerning his ownership of the nóte in suit and of the
The affidavit upon which the order for examination was granted was made by one of the defendants and averred that'prior to the service of the amended complaint herein, and as deponent is informed and believes, prior to the transfer of the note in suit herein to the plaintiff, the defendants commenced an action against the plaintiff and Baron, his assignor, in which they sued to -recover the said note together with the interest which had been paid thereon, upon the ground that said note was given in pursuance of an usurious agreement, and that usurious interest had been paid thereon for three years, and that prior to the commencement of this action, and as deponent is informed and believes, prior to the" transfer of the note in suit to the plaintiff, this deponent' commenced an action against the said Baron to recover the sum of $25,000, which amount deponent claims the said Baron was indebted to him, and deponent verily believes that the'transfer of said note by the said Baron to the said plaintiff was made to avoid liability to deponent thereon and to enable the plaintiff to allege that he was an innocent holder for value thereof before maturity. He also avers that at the time of the execution and delivery of said note he "was the husband of a daughter of Baron, the payee named in said note; that subsequent to the making and delivery of the note he and his wife were divorced and that his said former wife has since married the plaintiff herein that while dejxment and ■ his said former wife were living together, the plaintiff was a constant and frequent visitor at the house of deponent and was regarded by deponent as an intimate friend and that he has frequently' discussed with the said plaintiff the circumstances of the making and giving of the note in suit, its usurious character and the reasons for the'making of the note, and said plaintiff was, as deponent fully believes, fully cognizant of all the facts and circumstances in connection therewith. He then alleges that it will be impossible for liim to frame his answer without an examination of the plaintiff -and asks that he be required to answer such questions as will tend to inform these defendants of the circumstances surrounding the assignment of the note in suit to him and concerning his ownership.
There is no statement in the moving papers that the defendants
While we intend to adhere to the policy frequently expressed of -allowing examinations before trial in the interests of justice within -what we believe to have been the original intent and spirit of the provisions of the Code, it is our opinion that this order was improperly .gi*anted and-it-should, therefore, be reversed, with ten dollars costs and disbursements, and the motion denied, with tendollars costs.
Ingraham, Lahghlin, Scott and Lambert, J.T., concurred. ■
Order reversed, with ten dollars costs and disbursements, and motion, denied, with'ten dollars, costs, •