Van Valkenburgh v. Van Valkenburgh

Appeal from an order denying a motion to vacate an order for the examination of the defendant before trial.

The action is brought for a separation. The pleadings are not before us; but the affidavits disclose that the plaintiff demands relief on the ground of defendant’s cruelty, abandonment, and failure to support her. Defendant admits the abandonment and nonsupport, and alleges that he was justified in such abandonment because of plaintiff’s cruel and inhuman treatment of him and that plaintiff abandoned him as well. In the original moving affidavit for the order, it was averred that the testimony of defendant was necessary and material to the plaintiff upon the trial of this action in order to disclose the amount of defendant’s income and property, and “that the alimony to be adjudged and provided for in the final order for the maintenance of the plaintiff may be determined”; also to show what demands upon defendant’s property and income exist apart from plaintiff’s support; and finally that the “testimony is material and necessary in order to determine the amount of permanent alimony to which the plaintiff may be entitled.” The papers before us sufficiently demonstrate that the examination of defendant is not now necessary or material to plaintiff. The question of defendant’s financial condition in reference to any award of alimony does not become an issue until plaintiff has succeeded in establishing her right to the judgment which she seeks. Should she fail in her action, or should the defendant recover judgment in his favor upon his counterclaim wherein he asks for relief, the information sought by the examination would be immaterial, unnecessary, and useless.

The situation is analogous to that of an action to have a conveyance, absolute upon its face, declared to be a mortgage and for an incidental accounting (Fogarty v. Fogarty, 128 App. Div. 272 , 112 N. Y. Supp. 742 ); or an action for an accounting under an agreement to divide certain profits (Moore v. Reinhardt, 132 App. Div. 707 , 117 N. Y. Supp. 534 ); or an action to set aside an assignment of an interest in a copartnership and for an accounting (Gow v. Ward, 144 App. Div. 593 , 129 N. Y. Supp. 466 )—in all of which cases the right to an examination and discovery before trial was denied, as the accounting followed only as a result of the determination of the main issue. Here the right to alimony, if any, can only arise from a determination of the main issue in plaintiff’s favor, and until that is so decided the question of defendant’s financial situation as a possible basis for alimony is immaterial and not necessary to the establishment of plaintiff’s rights. As that is the sole subject of the examination which has been ordered, the order appealed from must be reversed, and the motion to vacate the order for the examination of defendant granted. ■

' MCLAUGHLIN, CLARKE, and SCOTT, JJ., concur.

(dissenting). I am of opinion that the plaintiff was entitled to the order for the examination of the defendant. The provisions of the Code of Civil Procedure with respect to the trial