H. G. Vogel Co. v. George Backer Construction Co.

Majority

p. 639

H. G. Vogel Company, Respondent, v. George Backer Construction Company, Appellant.

First Department,

January 19, 1912.

Headnote

Discovery — examination of defendant before trial — moving papers not showing good faith.

Where a plaintiff moving to examine the defendant before trial alleges that he desires to do so in order to avoid and properly defend two counterclaims, but the facts which he states he expects to prove by the examination are in exact contradiction of the facts alleged in the defendant’s verified answer, it is evident that the application is not made in good faith, but rather to pry into the defense, for it is not probable that the defendants would testify contrary to the verified statements in their answer.

p. 640

Appeal by the defendant, George Backer Construction Company, 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 13th day of October, 1911, denying a motion to vacate an order for the examination of the defend-, ant before trial;

Alexander Pfeiffer, for the appellant.

David, Bernstein, for the respondent.

The action was brought to foreclose a mechanic’s lien for work, labor and services performed and materials furnished in the installation of an automatic sprinkling system in a building owned by the defendant. The answer substantially denies the performance of the contract by the plaintiff and sets up two counterclaims for damages. The order directs an examination of defendant’s president, who verified the answer, and its treasurer. In the affidavit upon which the order was granted it was stated that the examination is “ material and necessary to enable plaintiff to properly prepare for the trial of the above-entitled action,” for the reason, in substance, that two counterclaims were set up, and that the examination was desired for the purpose of “avoiding and properly defending these two counterclaims.” The affidavit then proceeds to state the facts which the plaintiff expects to prove by the examination. Those statements of fact are precisely the opposite of the statements of fact contained in the defendant’s verified answer. It seems to us manifest that the examination was not applied for in good faith in the expectation that material and necessary testimony for the plaintiff would be elicited, and the rule is now definitely settled that an examination of an adverse party before trial is only allowed to enable the party applying for the examination to obtain testimony to establish his case or defense, as the case may be, or to meet and overcome the case or defense of the other party. The purpose of the examination is not to enable one party to pry into the case or defense of his adversary. No reasonable ground is shown to believe that the defendant’s president will swear directly to the con

p. 641

trary of what he has sworn in the answer. (See Weeks v. Whitney, 146 App. Div. 621 .) If orders for examination of adverse parties, are to he granted upon applications like this, the effect will he virtually to amend the Code of Civil Procedure so as to permit either party to examine his adversary at will. While that might be desirable, the Legislature has not as yet so provided.

The order should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Ingraham, P. J., Laughlin, Clarice and Scott, JJ., concurred.

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