Zeggio v. Robinson

139 N.Y.S. 1070 | N.Y. App. Div. | 1913

Dowling, J.:

This is an appeal from so much of an order as denies the motion of the plaintiffs to strike out certain interrogatories numbered 50th to 58th, inclusive, proposed by the defendants to be administered to Helen R. Zeggio, one of the plaintiffs, under a commission heretofore issued for her examination. The action is brought to remove defendants as trustees under the will of Phebe H. Robinson, for the appointment of a receiver, and for an accounting, and for other relief. In Wanamaker v. Megraw (168 N. Y. 125) it was said: “The settlement of the interrogatories is in no sense a decision that they are competent or proper, and the judge has no power to change or amend them, or to reject any of them. The allowance or settlement is required only for the purpose of authenticating the interrogatories as the ones which the commissioner is authorized to propound to the witness. He cannot propound any other than such as are thus allowed and authenticated by the judge, but the allowance has no other effect. This is very clear since by section eight hundred and ninety-two^* ' either party must be allowed to insert therein any question, pertinent to the issue, which he proposes.’ It is very plain, therefore, that the judge on the settlement cannot pass upon the competency of any question, and, of course, he cannot then know what answer will be given. Any question proposed by either party must be allowed, if pertinent to the issue.” Applying these principles to the proposed interrogatories, it is sufficient to say that then pertinency is not made to appear by any facts now before us, and so far as the record shows they can have no bearing upon the issues between these parties at this time. The order appealed from will, therefore, be reversed, and the motion granted to the extent of disallowing the interrogatories numbered 50th to 58th, inclusive, with costs to the appellants. Ingraham, P. J., McLaughlin, Clarke and Scott, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion granted to extent stated in opinion.

* See Code Civ. Proc. § 892.—[Rep.