Majority
p. 454Theodore Abramson, Respondent, v. Mrs. J. Davis Gowns, Inc., Appellant. Supreme Court, Appellate Term, First Department, December 24, 1926.
Headnote
Depositions — examination of plaintiff before trial —• action for wrongful discharge — employer is entitled to examine employee before trial to discover amount of money earned elsewhere during his term of contract.It was error to refuse the defendant an examination of its employee before trial as to the amount of money he earned elsewhere during the term of his contract, after having been dismissed from defendant’s employ, for the refusal to permit such an examination left defendant without any practical means of reducing the amount of damages claimed by plaintiff, which was an essential part of its ease.
Appeal by defendant from a judgment of the Municipal Court, Borough of Manhattan, Ninth District, in favor of plaintiff, bringing up for review the denial of defendant’s motion to examine the plaintiff before trial.
Benjamin Barondess, for the appellant.
Judson D. Campbell, for the respondent.
The right to prove how much plaintiff, employee, had earned elsewhere during the term of his contract, after his dismissal from his position, is an essential and integral part of defendant’s case, and the erroneous denial of its motion for an examination before trial left it without any practical means of reducing the amount of damages claimed by plaintiff. (Handel v. Co-ed Dressmakers, Inc.., 216 App. Div. 838 .)
Judgment and order reversed, with thirty dollars costs to appellant to abide the event, and motion granted. Examination to proceed at Part 1 of the Municipal Court, borough of Manhattan, Ninth District, on the 27th of December, 1926, at ten A. M.
All concur; present, Bijur, O’Malley and Levy, JJ.