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Jenning v. Gunnison

126 N.Y.S. 582 Court N.Y. App. Term Decision date 1911-01-05 English

Delivered by GAVEGAN, J.

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p. 582
JENNING v. GUNNISON.
(Supreme Court, Appellate Term.
January 5, 1911.)

Headnote

Discovery (§ 40[1] )—Grounds.
In an action to recover commissions, defendant denied the agreement, and set up payment and money loaned as a separate defense and counterclaim, which counterclaim was denied by plaintiff in his reply. Held, that defendant was not entitled to an order directing plaintiff to appear before trial for examination, on the ground that he was ignorant of the agreement set forth in- the complaint
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[Ed. Note.—For other cases, see Discovery, Cent. Dig. §§ 52-53; Dec. Dig. § 40.*]
p. 583
Appeal from City Court of New York, Special Term.
Action by Louis F. Jenning against Austin Gunnison. From order requiring plaintiff to appear for examination before trial, plaintiff appeals.
Reversed.
Argued before GIEGERICH, BRADY, and GAVEGAN, JJ.
Jacob Bernstein, for appellant.
Menken Bros. (Howard T. Cole, of counsel), for respondent.

The action was to recover commissions for services alleged to have been rendered by the plaintiff as factor for the' account of the defendant. Thé answer, after denying absolutely the allegations in the complaint that there was an agreement between the parties, sets up payment as a first separate defense, and money loaned as a second separate defense and counterclaim. Plaintiff’s reply to the counterclaim is a general denial.

The order obtained by the defendant, directing the plaintiff to appear. for examination before trial, is based on defendant’s affidavit that the testimony sought is material and necessary to enable defendant to prepare for trial, for the reason that he is entirely ignorant of the agreement alleged in the complaint. The mere statement of defendant’s ignorance of the agreement alleged, in view of the unqualified denial thereof in his answer, is not sufficient under the authorities to entitle him to an examination of the plaintiff before trial. Caldwell v. Glazier, 128 App. Div. 315 , 112 N. Y. Supp. 655 ; Merill & Baker v. Woolworth, 53 Misc. Rep. 253 , 103 N. Y. Supp. 57 .

Order reversed, with $10 costs and disbursements, and motion granted, with $10 costs.

BRADY, J., concurs. GIEGERICH, J., concurs in result.

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