Sperry & Hutchinson Co. v. O'Neill-Adams Co.

Majority

p. 285

The Sperry & Hutchinson Company, Respondent, v. O’Neill-Adams Company, Appellant. Louis Stewart and Others, Appellants.

First Department,

December 30, 1909.

Headnote

' Deposition. — examination of party before trial.

It is an abuse of discretion to order an examination of a party before trial for the mere purpose of disclosing the items making.up the damages claimed by .him. '

Appeal by the defendant, O’Neill-Adams Company, and by Louis Stewart and others 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 1st day of December, 1909, denying the appellants’ motion to vacate an order for the examination of the defendant and its officers before trial.

' Chester A. Jayne of counsel [ Gould & Wilkie, attorneys], for the appellants.

W. Benton Crisp, for the respondent.

The complaint demands $363,685 as damages for breach of contract. The answer alleges a breach by the plaintiff and demands judgment upon its countérclaim for $370,000. The order for examination provides that the defendant and certain of its specified officers “ submit to an examination concerning the following elements of damage alleged in defendant’s counterclaim,” enumerating six particulars of the damages set up in the counterclaim in. regard, to which an examination is desired. " .

While we have held in Schweinburg v. Altman ( 131 App. Div. 795 ) upon a review of the cases, that the court has power to order a general examination by one party of his opponent, we have also held that it was an unwise use of that discretionary power to order an examination for the mere purpose of disclosing the items which went to the making up of the. damages claimed by that opponent and which it was necessary for him to prove. (Hartog & Bein

p. 286

hauer Candy Co. v. Richmond Cedar Works, 124 App. Div. 629 ; Caldwell v. Glazier, 128 id. 315.)

Upon an examination of the record here submitted, we find no sufficient reason to except this case from the rule there laid down. - The order appealed from should, therefore, .be reversed, with ten dollars costs and disbursements to the appellant, and the motion to vacate the order for examination granted, with ten dollars costs. ■

Ingraham, McLaughlin, Houghton and Scott, JJ., concurred.

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