Jacobs v. Mexican Sugar Refining Co. — 112 A.D. 657

Majority

p. 657

Solomon R. Jacobs and Arthur Jacobs, Respondents, v. Mexican Sugar Refining Company, Limited, and Mexican Sugar Company, Appellants.

(No. 2.)

First Department,

April 20, 1906.

Headnote

Deposition — examination before trial — examination of officers' of corporation, as such, should not be ordered.

There is no authority to examine an officer of a corporation, as such, before trial apart from an examination of the corporation. The order of examination in form should authorize an examination of the corporation and provide that the information be elicited by an examination of certain of its officers.

When the court has decided that an examination of a corporation is proper, it cannot reverse that part of the order which allowed an examination of -certain of its officers, as siich, on appeal therefrom by the corporation.

Appeal by the defendants, the Mexican Sugar Refining Company, Limited, and another, from .so much of an order of the Supreme Court, made at the Rew York Special'Term and entered itl the office of the clerk of the "county of Rew York on the 28th day of February; 1906, as authorizes an examination before trial of James B. Craven, the treasurer and secretary of the Mexican Sugar Refining Company, Limited.

William P. S. Melvin, for the appellants.

G. H. Engelhard, for the respondents.

On an ex parte application of the plaintiffs, a justice of .this court ordered the examination of both defendants through their officers, after issue joined and before trial, pursuant to the provisions of sections 870, 872 and 873 of the Code of Civil Procedure. The defendants moved on notice to vacate this order, and the order, in so far as it required an examination of the corporations through their officers, was vacated. But it was assumed by the learned justice presiding at the. Special Term that the order authorized the- examination of J ames B. Craven either individually or as secretary and treasurer of the Mexican Sugar Refining Company, as distinguished from an

p. 658

examination of the corporation as a party, and in that respect the order was continued. In this the learned justice was in error.

There is no authority to examine an officer of a corporation as such,' apart from the examination of the corporation. The provisions of the Code of Civil Procedure authorize the examination of a party, including a corporation, and prescribe that where 'the party is a corporation the examination shall be had by examining one or more of its officers. The proper practice in such a case is to authorize the examination of the party, and then, the party being a corporation, the order should provide that the information is to be elicited by an examination of certain of its officers. The order, in so far. as it authorized the examination of Craven, appears to have been granted upon the theory that he was about to depart from the State and would not return thereto. Of course, the plaintiffs could perpetuate the testimony of Craven individually upon this ground, but the application was not made upon this theory, and it is not claimed that Craven individually, apart from his connection with the corporation and ability to testify from its records, possesses any information material to the .plaintiffs’ cause of action. It is evident, therefore, that if the learned Special Term was right in holding that the moving papers did not show a right to the examination of the party, the order should have been vacated in toto, instead of modified’, «as was done. Having reached the Conclusion, however, on an appeal by the plaintiffs from so much of the order as deprived them of the right to examine the corporations, that the examination was authorized,^[1] we cannot reverse that part of the order which is appealed from by the defendants.'

It follows that the order, so. far as appealed from, should be affirmed, but without costs;

O’Brien, P. J., Patterson, Ingraham . and Clarke, JJ., concurred. •

Order affirmed, without costs. Order filed.

* See Jacobs v. Mexican Sugar Refining Co. (No. 1) (ante, p. 655).— [Rep.