Hyperlawhypertext legal database Bruen v. Whitman Co. 106 A.D. 248

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Bruen v. Whitman Co.

106 A.D. 248 Court N.Y. App. Div. English

Delivered by Willard Bartlett, J.:

Contents

Majority

p. 248
Edwin C. Bruen, Respondent, v. The Whitman Company, Appellant.

Headnote

Examination of an officer of a corporation before trial—production of the corporate books only proper where necessary to refresh the memory of the officer.
In an action brought by a printer to recover damages for the breach of a contract whereby the defendant corporation agreed to give him preference over other printers in executing its printing work, the defendant may, on an examination of its vice-president and treasurer before trial, properly be required to disclose the names of the. persons to whom it gave printing work and the quantity of work given to each of such persons, but should not be required to disclose the price at which such work was done.'
p. 249
On such an examination of the vice-president and treasurer of the defendant corporation, it is proper to require the production of the books of the corporation, not for the inspection of the plaintiff, but for the use of the witness upon the examination, and then only, however, in case the witness needs their assistance in order to refresh his memory.
Appeal by the defendant, The Whitman Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 16th day of March, 1905, denying the defendant’s motion to vacate an order theretofore made in the action for the examination before trial of Martin I. Whitman, the vicé-president and treasurer of the defendant corporation.
Algernon S. Norton, for the appellant.
G. Murray Hulbert [Henry A. Brann with him on the brief], for the respondent.

This action is brought by a printer to recover damages for the breach of a contract whereby the defendant corporation agreed to give him á preference in executing its printing for advertising purposes in competition with other first-class printers. The papers upon which he has obtained an order for the examination of the defendant’s vice-president and treasurer before trial make out a fair case for the examination of that officer as to some of the matters specified in the order, to enable the plaintiff to prove the damages which he has sustained, but the order goes too far in certain respects. While it seems to us proper that the defendant should be required to disclose the names of those persons or concerns to whom it gave work of the character referred to in the contract, and the quantity of such work given to each, we see no propriety or occasion for a disclosure of the prices at which such work was done. A knowledge of such prices is not essential or material to prove the loss sustained by the plaintiff, assuming his theory as to the proper measure of damages to be correct.

The direction in the order for the production of the defendant’s books was virtually amended upon, the motion to vacate so as to provide that the books should be produced only for the purpose of

p. 250
■refreshing the recollection of- the vice-president and treasurer who is to be examined. This amendment obviates the objection which would otherwise arise under the authority of Romer v. Kensico Cemetery ( 79 App. Div. 100 ), and the amended. provision seems ■warranted, by the decision in Matter of Sands (98 id. 149 ). Nevertheless, a corporation ought not to-be required to produce its books upon the examination of one of its -officers- before trial, to enable him to refresh his memory therefrom while on the stand, unless he requires.,their assistance, in order to testify concerning the matters in regard to which he is to be examined.

The motion to vacate the -order of examination should not have been wholly denied, with'costs. The court at Special Term should have modified the order, without costs, (1) by striking out. the requirement that the witness be examined as to' the prices already ''mentioned, and (2) by inserting a provision that the books shall be produced, not for the inspection of the adverse party, but only for the use of the witness upon the examination, in case he shall need their assistance to refresh his memory.

, The order appealed -.from must he reversed and the motion granted, to the extent of thus modifying the order of examination.

■ Woodward, Rich and Miller, JJ., concurred.

Order reversed, with ten dollars- costs -and disbursements, and motion granted, to the extent indicated in the opinion of Bartlett, . J., without costs..

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