Donaldson v. Brooklyn Heights Railroad — 119 A.D. 513

Majority

p. 513

Samuel Donaldson, Respondent, v. The Brooklyn Heights Railroad Company, Appellant.

Second Department,

May 10, 1907.

Headnote

Deposition — examination, of corporation before trial.

When, on an application to examine a defendant corporation before trial, .the affidavit names the officers whose testimony is necessary and specifies the papers of-the corporation of which an inspection is desired, the application .should' he granted although the affidavit does not formally ask the examination of . the defendant itself. The desire to examine the defendant will be presumed, as there is no way to examine a corporation except through its officers.

The second department is opposed to the introduction of technical difficulties to thwart or-make difficult the plain and beneficial provisions of the statute . -, authonzing^the examination of parties and witnesses before trial.

Appeal by the defendant, The Brooklyn Heights Railroad 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 13th day of February, 1907, denying the defendant’s motion to vacate a prior order'for the examination before trial of the secretary of the defendant, and for the inspection of specified papers of the corporation.

George I), Yeomans [D. A. Marsh with him on the brief], for the appellant. •

Franh Harvey Field, for the respondent.

The last subdivision of section 872 of the Code of Civil Procedure ■ provides that “ if the party sought to be examined is a corporation, tiie affidavit shall state the name of the officers or directors thereof, or any of them whose testimony is necessary and material, or the books and papers as to the contents of which an examination or inspection is desired, and the order to be made in respect thereto shall direct the examination of such persons and the production of such books and papers The affidavit complies with this. It states the name of the secretary, as the officer to be examined, and specifies the papers of the corporation of which inspection is desired, and the order requires such secretary to attend for examination and bring with him the said papers. It was not necessary for the affidavit to contain the mere formalism that the plaintiff desired the examination of the defendant; that appears from the affidavit; there is no way to examine the defendant except through its officers. The case of Jacobs v. Mexican Sugar Refining Co., Ltd., No. 2 ( 112 App. Div. 657 ) is not in' the way. There ' a fanciful distinction was ■sought to be made between examining an officer of a corporation party as such officer, and examining him for the purpose of examining the' corporation, which was not allowed on appeal. The courts of ■ this judicial -.department always have been and are still opposed to .the introduction of technical difficulties to thwart or to make difficult the plain and beneficial provisions for thé examination of parties and witnesses before trial. The administration of justice does not suffer by such examinations but often from the lack of them. They are a' great help in the elicitation of the truth and in simplifying the issue of fact and shortening trials (Shonts v. Thomas, 116 App. Div. 854 ).

The order should be affirmed.

Woodward, Jenks and Rich, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.

Cases cited

Jacobs v. Mexican Sugar Refining Co. 112 App. Div. 657 N.Y. App. Div. 1906-04-20 p. 513
Shonts v. Thomas 116 App. Div. 854 N.Y. App. Div. 1907-01-25 p. 513