Locomobile Co. of America v. Nichols — 140 N.Y.S. 1041

Majority

p. 1041

LOCOMOBILE CO. OF AMERICA v. NICHOLS.

(Supreme Court, Appellate Term, First Department.

March 10, 1913.)

Headnote

Discovert (§ 40*)—Examination Before Trial—Scope.

In the absence of special circumstances, an examination of an adverse party before trial should not be granted to meet issues which that party must first establish; but the examination should be limited to the issues raised by the complaint and denials in the answer.

[Ed. Note.—For other cases, see Discovery, Cent. Dig. §§ 52, 53; Dec. Dig. § 40.*]

Appeal from City Court of New York, Special Term.

Action by the Locomobile Company of America against Edwin Nichols. From a City Court order denying defendant’s motion to vacate an order for the examination of defendant before trial, he appeals. Modified and affirmed.

Argued March term, 1913, before LEHMAN, GERARD, and DELANY, JJ.

Tipple & Plitt, of New York City (Arthur W. Clement, of New York City, of counsel), for appellant.

Niles & Johnson, of New York City (William W. Niles and Francis C. Nickerson, both of New York City, of counsel), for respondent.

Plaintiff has obtained an order for defendant’s examination upon all the issues included in the pleadings, including matters in avoidance of defendant’s affirmative defenses. It is too well established to require citation that in the absence of special circumstances an examination of an adverse party should not be granted for the purpose of meeting the issues which that party must first establish. Such an examination is palpably ordinarily merely a cross-examination before trial, and without even the limits of a previous direct examination. In this case I find no special circumstances justifying such an examination; on the contrary, the matters which the plaintiff claims that he expects to prove by the defendant are in the main directly contrary to the matters pleaded by defendant in his verified answer and which he must prove at the trial.

The order should therefore be modified, by limiting the examination to the issues raised by the complaint and denials, and, as modified, affirmed, without costs to either party, but with disbursements to the appellant. All concur.