Andersen v. Beston — 140 A.D. 301

Majority

p. 301

Frederick W. Andersen, Respondent, v. Rachel S. Beston, Appellant.

First Department,

October 21, 1910.

Headnote

Discovery — examination before trial to support insufficient complaint.

Where a juror was withdrawn with leave to the plaintiff to move to amend a complaint which was held to be insufficient, and he did not avail himself of such leave, he should not two years thereafter be allowed to examine the defendant to support the defective complaint.

Appeal by the defendant, Rachel S. Beston, 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 10th day of May, 1910, denying the defendant’s motion, to vacate an order for her examination before trial.

p. 302

Isaac N. Miller, for the appellant.

No appearance for the respondent.

This action came on for trial on the 27th of February, 1908. At the conclusion of the trial, the justice presiding permitted the withdrawal of a juror, saying: “If you desire to withdraw a juror and move for an amendment of your complaint at Special Term, Part I, you may do so.” The plaintiff having avoided' a dismissal of his complaint or the direction of a verdict by obtaining leave to move at Special Term for an amendment, did not avail himself of said leave and did not make such motion.

Two years thereafter he obtained an order for the examination of the defendant and in his moving affidavit sets up the following: “ In the first place, the said examination may develop such an authority in the said husband of the defendant to act for her as may make it unnecessary to apply for such amendment, and in the second place, if that be not accomplished such examination may determine the nature and character of the pleading required upon such amendment.”

A motion was made to vacate the order for the examination which was denied, “ except that the examination shall be limited to proving the allegations of the present complaint herein,” and from said order the defendant appeals.

The order for the examination upon the alternative grounds stated should not have been granted and the limitation thereof to proving the allegations of the present complaint should not have’ been made. The plaintiff had his day in court upon the present complaint and it was determined to be insufficient. He may not at this late day be granted an examination in support thereof.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion to vacate the order for the examination of the defendant granted, with ten dollars costs.

Present — Ingraham, P. J., McLaughlin, Laughlin, Clarke, and Scott, JJ.

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