Richards v. Whiting — 127 A.D. 208

Majority

p. 208

Paul M. Richards, Respondent, v. Charles S. Whiting, Appellant.

Second Department,

June 5, 1908.

Headnote

Deposition. — examination of party before trial.

In an action to recover on an agreement to divide commissions on real estate" "transactions, the plaintiff may examine the defendant before "trial,, not only as to transactions had "with persons introduced by him and as to commissions ■ earned, but may also examine the defendant to prove the contract. Personal knowledge of the plaintiff, or the fact that he has other evidence on the issue. ■ is no bar to an examination of the adversary.

Appeal by the defendant, Charles S. Whiting, 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 Nassau on the 28th day of March, 1908, denying the defendant’s motion to modify an order for his examination before trial.

Conrad Saxe Keyes, for the appellant.

J. Aspinwall Hodge, for the respondent.

The complaint alleges a contract between the plaintiff and the defendant that all commissions on real estate transactions by the latter with persons introduced to him by the former. should be equally divided: It is conceded that an examination before trial should be had, but contended that it should be limited to* proof of the transactions had with persons so introduced and the commissions earned thereon. The defendant should not be examined to prove the contract or to show,the persons -introduced, it is claimed, for the reason that the plaintiff must have personal knowledge thereof and can testify to it himself on the trial. That a party has other"' evidence on an issue is not a reason for'reftisir.g to allow him to examine his adversary on the issue. ■ On the Contrary, such examination may avoid the necessity of calling witnesses. It might seem that due regard for recent decisions would deter the taking of appeals like this (Shonts v. Thomas, 116 App. Div. 854 ; Donald

p. 209

son v. Brooklyn Heights R. R. Co., 119 id. 513; Goldmark v. U. S. Electro-Galvanizing Co., 111 id. 526; McKeand v. Locke, 115 id. 174; Koplin v. Hoe, 123 id. 827; Cherbuliez v. Parsons, 123 id. 814).

The order should be affirmed.

Jerks, Hooker, Rich and Miller, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.

Cases cited

Shonts v. Thomas 116 App. Div. 854 N.Y. App. Div. 1907-01-25 p. 208