Jerrells v. Perkins — 25 A.D. 348

Majority

p. 348

Sarah E. Jerrells, Appellant, v. Asa F. Perkins, Respondent, Impleaded with Others.

Headnote

Amendment of a complaint—an examination of a parly beffm'e trial in order ■ ,to prepare it — ignorance of the details of an agreement made by the defendant for the plaintiff’s benefit—requirement that papers be produced — notice not required. ■ ' '

In an action brought for the foreclosure of a mortgage, an answer was interposed containing certain denials, and alleging its payment and satisfaction, whereupon the plaintiff, upon an affidavit alleging that the mortgage was given by" the defendant to his father, since deceased, for the purpose of securing to the plaintiff and her assignors the sum of $3,850, two years after the father’s death, and that an agreement to that effect, the details of which were unknown to the plaintiff, was made between the defendant and his deceased father, which the defendant was unwilling to disclose, and which the plaintiff sought knowledge

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of with a view to amending her complaint, an amendment of which was necessary in order that the plaintifE’s cause of action should be stated, obtained an order requiring the defendant to appear before a referee “for the purpose of being examined pursuant to the provisions of article 1, title 8, chapter 9 of the Code of Civil Procedure.”

Held, that the order was properly granted;

That a provision of the order, requiring the defendant to produce ‘ ‘ such papers as shall be necessary to his examination as to any and all agreements made between him and his father,” having no justification in the allegations of the affidavit, was improperly inserted in the order.

Notice to the defendant of an application for such an order is not necessary.

Appeal by the plaintiff, Sarah E. J'errells, from an order of the . Supreme Court, made at the Monroe Special Term and entered in the office of the cleric of the county of Monroe on the 21st day of September, 1897, vacating an order granted by the county judge -of Monroe county, which required the defendant Asa F. Perkins to appear before a referee upon a day named, “ for the purpose of being examined pursuant to the provisions of article 1st, title 3, chapter 9 of the Code of Civil Procedure, in relation to the examination of witnesses before-trial.”

The order also required the defendant Perkins to “ produce and bring with him at that time such papers as shall be necessary to his examination as to any and all agreements made between him and his father and mother touching his father’s property, or a division thereof, and more particularly a certain bond and mortgage and agreement drawn * * * on or about the 6th day of May, . 1879, * * *."

Nelson E. Spencer, for the appellant.

Nathaniel Foote, for the respondent.

Section 870 of the Code of Civil Procedure provides that a deposition. of a party to an action may be taken at his own instance, “ or at the instance of an adverse party * * * at any time before the trial, as prescribed in this article.”

Section 872 of the Code of Civil Procedure provides what shall be shown in the application for such an order; and, among other things, in subdivision 4 of that section it is made incumbent upon a party making the application to give the name and residence of

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the person to be examined, and to show “ that the testimony of such person is material and necessary for the party, making such application.” It is further prescribed in subdivision 7 of • section 872 that an affidavit may show “ any other fact necessary to show that the case comes within one of the two last sections.”

Plaintiff and her assignors are children of Asa Perkins, and the respondent, Asa F. Perkins, their brother, is a son of Asa Perkins; and the complaint alleges that he, on the 18th of August, 1883, executed his bond and mortgage to the father for' the purpose of allowing to the plaintiff and her assignors the sum of $3,350, payable two years after the death of said Asa Perkins and his wife, Martha Perkins, which bond and mortgage were executed and delivered to Asa Perkins, and the usual allegations in a complaint for a foreclosure of a moi’tgage are inserted. The respondent, Asa F. Perkins, interposed an answer containing certain denials and alleging payment, and that the said mortgage was satisfied and discharged by Asa Perkins, the father, on the 11th of June, 1886.

The examination of. the respondent was sought by the plaintiff for the purpose of ascertaining facts and circumstances upon which an amended complaint might' be prepared, and it was stated in the affidavits used by the appellant “ that an amended complaint is necessary in order that plaintiff’s cause of action may be stated on as broad ground as the facts will warrant.” The affidavits seem to indicate the fact that the respondent is unwilling to disclose the-information sought by the plaintiff with a' view of amending the complaint.

The application for the examination of the respondent, Asa F. Perkins, seems to have been made in good faith and for the purpose of enabling the plaintiff to amend her complaint so as to present more fully the claims of herself and her assignors against the respondent.

It was not necessary that a notice should be given to the defendant before obtaining the order for his examination. (Dixon v. Dixon, 8 N. Y. St. Repr. 816 ; Code Civ. Proc. §§ 870, 872; Heishon v. Knickerbocker Life Ins. Co., 77 N. Y. 278 .)

. The plaintiff alleges in an affidavit which was used that she knows that “ an agreement was entered into by Asa F. Perkins with Asa Perkins, whereby he agreed to pay to his brothers and sisters, as

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alleged in the complaint in this action, the sum of $3,350, and that the source of her information is statements made to her by her father ■and by the defendant Asa F. Perkins to that effect, but that deponent does' not know the form and details or terms of that agreement.”

It seems that facts and circumstances were shown- sufficient to authorize the county judge to make an order for the examination of the defendant before trial. However, we think that that portion of the order which required the defendant to “ produce and bring with him * * * papers as shall be necessary to his examination as to any and all agreements made between him and his father and mother touching his father’s property, or a division thereof,” was improperly inserted in the order, as no case was made by the affidavits for an inspection of papers. (Wahed El Tazi v. Stein, 20 Civ. Proc. Rep. 125; Hauseman v. Sterling, 61 Barb. 3 .47.)

We think that the order of the Special Term setting aside the order made by the county judge should be reversed, and the order made by the county judge should be modified by striking therefrom the provision requiring the production of papers, and the motion to set aside and vacate that portion of the order remaining after such modification should be denied, and the appellant, upon giving five days’ notice to the respondent for the examination before the referee, should be allowed to execute the order as thus modified.

Order appealed from reversed, with ten dollars costs and disbursements, and the order of the county judge modified ás stated in the opinion.

Cases cited

Heishon v. Knickerbocker Life Insurance 77 N. Y. 278 N.Y. 1879-05-20 p. 350