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White v. Improved Property Holding Co.

118 N.Y.S. 1057 Court N.Y. App. Div. Decision date 1909-10-22 English

Delivered by CLARKE, J.

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p. 1057
WHITE v. IMPROVED PROPERTY HOLDING CO. OF NEW YORK.
(Supreme Court, Appellate Division, First Department.
October 22, 1909.)

Headnote

Discovert (§§ 53, 56[1] )—Examination of Partt Before Trial.
Where the papers in support o£ plaintiff’s motion for an order for examination of officers, servants, etc., of defendant to enable plaintiff to frame a complaint affirmatively establish that plaintiff has all the information necessary to enable him to frame his complaint, the order should be denied; but if, after issues joined, it becomes necessary to examine defendant to obtain the facts necessary for use upon the trial, a proper application may be made.
[Ed. Note.—For other cases, see Discovery, Cent. Dig. §§ 66, 71; Dec. Dig. §§ 53, 56.[1] ]
Appeal from Special Term, New York County.
Action by George D. White against the Improved Property Holding Company. From an order denying a motion to vacate an order for examination of certain officers of defendant to enable plaintiff to frame a complaint, defendant appeals.
Reversed, and motion granted.
Argued before INGRAHAM, LAUGHLIN, CLARICE, HOUGHTON, and SCOTT, JJ.
George Hahn, for appellant.
Edward IC. Sumerwell, for respondent.

The moving papers affirmatively establish that the plaintiff has all the information necessary to enable him to frame his complaint. Therefore he needs no examination of the defendant for that purpose, and the order appealed from was improvident. Waitz

p. 1058
felder v. Moses Sons & Co., 120 App. Div. 144 , 104 N. Y. Supp. 796 ; Matter of Gardner, 124 App. Div. 654 , 109 N. Y. Supp. 95 ; Rosenthal v. Jackson, 125 App. Div. 895 , 110 N. Y. Supp. 786 . After the issue is joined, if it become necessary to examine the defendant for the purpose of obtaining evidence necessary and material for use upon the trial, a proper application for such relief can be made.

The order appealed from should be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs. All concur.

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