Thalmann v. Importers & Traders' National Bank

Majority

p. 629

Ernst Thalmann and Richard Limburger, General Partners under the Firm Name of Ladenburg, Thalmann & Co., a Limited Partnership, Respondents, v. The Importers and Traders’ National Bank of New York and Others, Appellants, Impleaded with Julius Schroeter, Defendant.

Headnote

Order modified by directingthafcaeommissionissuetoexamine the witnesses on written interrogatories, with ten dollars costs and disbursements to appellants.— Appeal by the defendants The importers ana Traders’ National Bank of New York, Edward H. Perkins, Jr., and Edward Townsend from an order of the Supreme Court, made at the New York Special Term and entered in the cleric’s office of the county of New York on the 29th day of May, 1902, as resettled by an order of June 6,1902, directing that an open commission issue in behalf of the plaintiffs for the examination of five witnesses in the city of Richmond.

The action is brought to recover the sum of $38,034.42 alleged to have been loaned by the plaintiffs to the defendant Schroeter which it is claimed he paid to the defendant bank either in cash or in other collateral purchased with the proceeds of the loan. It is alleged that the loan was procured through a fraudulent and prearranged scheme and conspiracy on the part of the defendants to induce the plaintiff to accept as collateral security therefor what purported to be fifty-six bonds of the commonwealth of Virginia of $1,000 each, which bonds, as. the defendants well knew, were false, forged and counterfeited. The answers of the defendants put in issue the material allegations of the complaint. The witnesses are all residents of Virginia and three of them are public officials and two are the president and cashier respectively of the National Bank of Virginia which is the Richmond correspondent of the appellant bank. It is claimed that the president and vice-president of the National Bank ofVirginia are hostile to the plaintiff; but this claim is based upon the fact that that bank

p. 630

is the correspondent of the appellant bank, and that these witnesses have refused to give the plaintiffs any information concerning the alleged cause of action. It is proposed to examine all of these witnesses on the main issues in the case. The plaintiff has seen fit to bring his action here and sufficient ground is not shown for transferring the trial of the principal issues to the State of Virginia. No special reason or circumstance is shown which warrants the issue of an open commission. The order should, theretfore, be modified, with ten dollars costs and 'disbursements to the appellants, by direct"ing that a commission issue to examine the 'witnesses upon written interrogatories. "Van Brunt, P. J., Patterson, Ingraham and Hatch, JJ., concurred.