Istok v. Senderling — 118 A.D. 162

Majority

p. 162

John Istok, Appellant, v. Martin L. Senderling, Respondent, and George L. Hough, Doing Business under the Firm Name and Style of The Senderling Manufacturing Company.

First Department,

March 8, 1907.

Headnote

Practice —"examination before trial to prove partnership of defendants.

When the complaint alleges and the answer denies that the defendants were doing 'business as copartners and the plaintiff "shows that the defendants have - filed a certificate in the county clerk’s office stating that they intended to do business under the firm name alleged, the plaintiff is entitled to examine the defendants before trial to prove that fact.

■’That the plaintiff's allegation as to the partnership of the defendants was not Upon information and belief or that he had personal knowledge of the fact . does not justify the court in refusing an examination before trial.

The Appellate Division is committed to a construction of sections 870 and 872 of the Code of Civil Procedure which will permit a party to an action to take the deposition of an adverse party where it is apparent that his' evidence will be material at the trial of the action.

^Appeal by the plaintiff, John Istok, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 23d day of November,, 1906, vacating a prior order for the examination of the defendant Senderling before trial.

Charles S. Aronstam, for the appellant.

Edwin A. Jones, for the respondent.

The action was brought to recover the -damages sustained by the plaintiff as an employee of the Senderling Manufacturing Com- . pany. The complaint alleges that the defendants were doing business under -the firm name and style of The Senderling ■Manufacturing Company. This allegation the defendant denies. Whereupon the fact that these two defendants were doing business under tins corporate name- was an essential fact that the plaintiff was required to prove upon the trial of the action. The plaintiff, therefore, was entitled to examine the defendants to prove such fact. In the motion papers upon which the order for the examination of the defendant was obtained it is alleged that there is on file in the county clerk’s office a ’ certificate filed oír September 27, 1900, in which these defendants certify that they were and intended to continue doing business under the name of The Senderling Manufacturing Company, and that there is no subsequent record of any change. The defendant Senderling could testify as to the arrangement under which he did business and a case was, ’therefore, presented which justified the plaintiff in examining him eithe'r before trial, as provided in section 870 of the Code of Civil Procedure, or at the trial. The fact that the allegation of the complaint was not upon information- and belief does not justify the court in refusing to allow the plaintiff to obtain by an examination before trial the legal evidence of the 'relations of the defendant to the accident. The fact that plaintiff had personal knowledge of the facts alleged in the court is no reason why he should riot, by taking the deposition of a defendant, procure evidence which lie could use upon the trial to establish such allegations. The defendant would be a- competent witness on the trial to prove the facts sought to Be proved by this examination, and the Code gives to an adverse party the express right to take such a deposition before trial-rather than be subjected to the possibility of being unable to subposna the witness so as to compel his attendance at the trial. This court is committed to a -construction of sections 870 and. 872 of the Code of 'Civil Procedure which Will authorise a party to an action to take the deposition of an adverse party where it is apparent that his evidence would be material at the trial of the action. (Goldmark v. U. S. Electro-Galvanizing Co., 111 App. Div. 529 ; McKeand v. Locke,

p. 164

115 id. 174.) The learned judge at Special Term seemed to have thought that the object of this examination was to enable the' plaintiff to ascertain whether he hací á cause of action, This .was clearly a mistaken, view of the application. What the plaintiff desires is -proof of the fact which he alleges in his complaint and from which his affidavit shows he was justified in alleging.

It follows that the order appealed from should he revérsed, withten dollars costs- and disbursements, and the- motion to vacate- the Order for the examination denied, and "the order reinstated;' the defendant Senderling to appear for examination at a time to be fixed in the order.

Patterson, P. J., McLaughlin, Clarke and Soott, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied and order reinstated as stated in opinion. Settle order on notice.