Beer Importing Co. of America v. Boross — 121 N.Y.S. 342

Majority

p. 342

BEER IMPORTING CO. OF AMERICA v. BOROSS et al.

(Supreme Court, Appellate Division, First Department.

February 18, 1910.)

Headnote

Discovery (§ 32^[1] )—Examination oe Party Before Trial.

A corporation, suing an officer for breach of duty occasioned by his failing to comply with an order .of the directors to direct a representative of the corporation in a foreign country to obtain a contract for it and by his directing the making of a contract in the name of another corporation, of which he was an officer, is entitled to examine the officer before trial to procure testimony necessary for it to establish its case.

[Ed. Note.—For other cases, see Discovery, Cent. Dig. § 46; Dec. Dig. § 32.^[1] ]

Appeal from Special Term, New York County.

Action by the Beer Importing Company of America against Eugene Boross and another. From an order vacating an order for the examination of defendant Boross before trial, on the ground of the insufficiency of the papers on which the order was granted, plaintiff appeals.

Reversed.

Argued before INGRAHAM, P. J., and LAUGHLIN, CLARKE, SCOTT, and MILLER, JJ.

Gilbert D. Lamb, for appellant.

J. Campbell Thompson, for respondents.

It appears that at the time of the transaction- in suit the defendant Boross was the president of the plaintiff corporation, and also of the defendant corporation, the International Import & Export Company; that he was instructed by the directors of the. plaintiff to send a cablegram to a representative in Munich, directing the latter to obtain a certain contract for it, but that the cablegram was changed, before it was transmitted, so as to direct the making of the contract in the name of the defendant corporation, with the result that the said representative did in fact procure such contract in the name of the latter corporation. It is charged in the complaint that the defendant Boross, in violation of his trust and duty to the plaintiff, caused such contract to be procured for the benefit of said defendant corporation, instead of the plaintiff, for which wrongful act damages are asked. The order vacated limits the examination to circumstances relating to the change in the draft cablegram before it was transmitted.

The defendant is charged with a violation of fiduciary duties. ■ The plaintiff desires to examine him relative to a matter which he alone can

p. 343

explain. It is made plain that this examination is desired for the purpose of procuring testimony which it is necessary for the plaintiff to have to establish its case.. If ever a proper case was presented for the examination of a party before trial, this would seem to be such a case.

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