Schulte v. Petruzzi — 137 N.Y.S. 1103

Majority

p. 1103

SCHULTE v. PETRUZZI.

(Supreme Court, Appellate Division, First Department.

November 8, 1912.)

Headnote

Discovery (§ 38*)—Application to Examine Plaintiff—Sufficiency.

Defendant’s application to examine plaintiff before trial should have been denied, where he did not show what evidence necessary to his defense he expected to extract from plaintiff, and the only purpose disclosed was to discover plaintiff’s evidence in advance of the trial.

[Ed. Note.—For other cases, see Discovery, Cent. Dig. § 51; Dec. Dig. § 38.*]

♦For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Ren’r Indexes

Appeal from Special Term, New York County.

Action by Anton Schulte against Joseph Petruzzi. From an order denying plaintiff’s motion to vacate an order for his examination before trial, plaintiff appeals.

Reversed.

See, also, 149 App. Div. 907 , 133 N. Y. Supp. 503 .

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

Samuel Campbell, of New York City, for appellant.

Albert W. Meisel, of New York City, for respondent.

The action is for an injunction to restrain defendant, formerly plaintiff’s partner, from soliciting former customers of the firm and otherwise using its good will. The complaint contains the allegations usual in such cases, as to what defendant is doing and has done. The answer consists mainly of denials, except as to some rel

p. 1104

atively unimportant matters, which are admitted, and embraces no affirmative defense. As was said by this court in Oakes v. Star Co., 119 App. Div. 358 , 104 N. Y. Supp. 244 :

“It is still necessary to show,' by the recitation of affirmative facts and circumstances, that the testimony sought to be elicited is material and necessary for the party making the application, and it is incumbent upon the party seeking the examination to make this fact apparent.”

In this regard the defendant has. wholly failed. He does not suggest, and we cannot imagine, what evidence he can expect to extract from plaintiff which will be necessary to his defense. The only apparent purpose for such an examination is to discover in advance of the trial what evidence plaintiff has to support his complaint. This is not the legitimate purpose of such an examination.

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