Grant v. Greene Consolidated Copper Co. — 118 A.D. 853

Majority

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James A. Grant and Nettie L. Grant, Respondents, v. Greene Consolidated Copper Company, Appellant, Impleaded with William C. Greene and Others, Defendants.

First Department,

April 5, 1907.

Headnote

Deposition.—‘examination of party before-trial cannot be used to obtain due service on codefendant — practice — nature of ex parte motion not changed by informal appearance of respondent.

A plaintiff is not entitled to the examination of. the officers of a defendant corporation before trial for the mere purpose of finding out upon whom the summons can be served to obtain jurisdiction of another defendant corporation.

When on an ex parte application to vacate an order for the examination of a defendant before trial, the court requires the defendant to give informal notice to the plaintiff, the motion is not turned into one made upon notice so that the refusal of the justice to vacate the order ex parte is a bar to a subsequent motion upon formal notice.

Appeal by the defendant, the Greene Consolidated Copper Company, from an order of the Supreme Court, made at the New York

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Special Term and' entered in the office of the clerk of the county of New York on the 12th day of January, 1907, denying the said defendant’s motion to vacate' a prior order for the examination of the directors, of the appellant company.

M. E. Harby, for the appellant.

Walter B. Raymond, for the respondents.

This is an appeal from an order denying a motion upon notice to vacate an order for the examination of the officers of the Greene Consolidated Copper Company concerning “ the names and addresses of the officers and directors of the defendant Cobre Grande Copper Company,” a codefendant. The affidavit of Hettie L. Grant sets forth: First, that the persons to be examined were officers of the Greene Consolidated Copper Company. Second, that a majority of the stock of the Cobre Grande Company is owned by the defendants, and that company is controlled by said defendants. . Third, that plaintiff has been unable to ascertain the name of any officer of the Cobre Grande Company upon whom process can be served, and the Greene Consolidated. Copper Company has refused any information. Fourth, that the testimony of the persons mentioned in the order is material and necessary to plaintiff in order that she may ascertain the names of the officers of the Cobre Grande Company upon whom service of a summons in this action may- be- made. In short, plaintiff desires to examine the officers of one defendant, not for use upon the trial nor to -prove any allegation of the complaint, but to find out upon whom she can serve a summons in order to bring another defendant into jurisdiction.

We are aware of no provision of statute, and are referred to none, authorizing an examination for that purpose, and it was distinctly held in Dudley v. N. Y. Filter Mfg. Co. ( 80 App. Div. 161 ) that such an examination could not be held merely to enable a party to prepare for trial, but only when it fairly appears that it is the intention of the party to use the examination upon the trial. Here the contrary distinctly appears. There is no force in the suggestion that the refusal of the justice who made the' order for examination to vacate it ex parte was a bar- to this motion made on notice. It is

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true that when appellant applied ex.parte for the vacation of the order to the justice who granted it, it was instructed by him to invite the respondent’s attorney to submit his views, and, as courtesy required, it did informally inform its opponents that such an ex parte application was pending and would be considered by the justice at a certain time. This did not suffice, however, to turn the motion into one made on notice. The application remained, none the less, an ex parte one, and the order denying the application, whatever its form, can only be regarded as an ex parte order, not conclusive upon the appellant, as a bar to a formal motion to the court upon proper notice.

The order must be reversed, with ten dollars costs and disbursements, and the motion- to vacate granted, with ten dollars costs.

Patterson, P. J., Ingraham, Laughlin and Clarke, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.