p. 574Commercial Publishing Company, Appellant, v. Samuel C. Beckwith, Respondent.Headnote
Examination of a defendant before trial—action to recover for debts collected — disclosure of names and residences of debtors, and amounts and times of collections: ordered, although the. defendant states that he intends to attend the trial.Where an action is brought to recover moneys collected by the defendant at different times from various persons who were debtors of a third party, the plaintiff, upon showing that he does not know the names and residences of such; persons nor the amount collected from each of them, nor the times when the • several collections were made, but that these facts are within the personal knowledge of the defendant, and that it is necessary for the plaintiff to prove them in order to make out its cause of action, is entitled to an order for the examination of the defendant before trial, although the latter states that it is, his intention to be present at the trial.
Appeal by the plaintiff, the Commercial Publishing Company,, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 7th day of January, 1901, vacating an order for the examination of the defendant before trial.
A. Walker Otis, for the appellant.
Anthony B. Porter, for the respondent.
It appears from the affidavits that the money' sought to be recovered in this action was collected by the defendant from various, persons who were debtors of the Memphis Appeal Company, and at different times after the 28th of February, 1896. Heither the names and residences of these persons nor the amount collected from each one of them, nor the times when the several collections, were made, áre known to the plaintiff, but these facts are within the personal knowledge of the defendant. It is evident that with the testimony of the defendant upon all these questions the plaintiff will be able to make out a good cause of action, and that without his testimony it is difficult if not practically impossible for it tO' prove what is alleged in the complaint. The evidence of the defendant, therefore, is material and necessary for the plaintiff to
p. 575have upon the trial of the action. It is not difficult to surmise that if the plaintiff should be left until the trial before having an opportunity to examine the defendant as to these collections, it might be seriously crippled in its effort to ascertain the facts, and if the defendant’s recollection should happen to fail at the trial, the plaintiff would be left in the lurch and unable to establish its case. It is not beyond the bounds of possibility also that the defendant might not feel called upon to appear on the trial, in which case the plaintiff would undoubtedly be without remedy. Even if the defendant stated that it was his present intention to be present at the trial, that would be no reason why the examination should be refused.
(Presbrey v.
Public Opinion Co., 6 App. Div. 600 ;
Press Publishing Co. v.
Star Co., 33 id. 242.) This case is not within the reasoning nor is it controlled by the ease of
Jeffries v.
Brown (
57 App. Div. 633 .) The order should be reversed, with ten dollars costs and disbursements, and the motion to vacate the order for the examination of the defendant denied, with ten dollars costs.
Present — Yak Brunt, P. J.,. Bumsey, O’Brien, Ingraham and Hatch, JJ.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.