STANDARD MAIL ORDER CO. v. KAUFMAN et al.(Supreme Court, Appellate Division, First Department.Headnote
Discovery <©=>40—Examination of Plaintiff—Propriety.Where the moving affidavit, upon which an order for the examination before trial of plaintiff was obtained, clearly showed that the defendants desired to disprove by plaintiff all allegations which it was necessary for such plaintiff to establish to make out a prima facie case of conspiracy, the order for examination will be vacated, since an attempt to cross-examine a plaintiff on its own case before trial is improper.
[Ed. Note.—For other cases, see Discovery, Cent. Dig. §§ 52, 53; Dec. Dig. <@=>40.]
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Appeal from Special Term, New York County.
Action by the Standard Mail Order Company against Harry KauL man and others. From an order denying plaintiff’s motion for an order vacating and setting aside an order for its examination before trial, plaintiff appeals.
Reversed, and motion to vacate the order granted.
See, also, 152 N. Y. Supp. 1144 .
Argued before INGRAHAM, P. J., and CLARKE, SCOTT, DOWLING, and HOTCHKISS, JJ.Taylor, Jackson & Brophy, of New York City (Sidney W. Fish, of New York City, of counsel), for appellant.
Myers & Goldsmith, of New York City (Emanuel J. Myers, of New York City, of counsel, and Josiah Canter, of New York City, on the brief), for respondents.
The complaint alleges a conspiracy between the defendants and one of the plaintiff’s employes by means of which, through the payment of large sums of money by the defendants to said employé, plaintiff bought from the defendants more than it needed, paid higher prices than it ought, and received inferior goods, whereby the defendants cheated plaintiff and paid bonuses or commissions to said employé, in order 'to get the business, of upwards of $6,000. It demands damages accruing to it from such action and such conspiracy.
There is no affirmative defense set up in the answer. The moving affidavit, upon which the order for the examination of plaintiff was obtained, clearly shows that the defendants desire to disprove by plaintiff all the allegations of plaintiff which it must establish in order to make out its prima facie case. Obviously there is merely an attempt to cross-examine plaintiff on its own case before trial. This may not be done. Siede v. Newkirk, 148 App. Div. 864 , 133 N. Y. Supp. 623 , is precisely in point.
The order appealed from should be reversed, with $10 costs and disbursements, and the motion to vacate the order for examination be granted, with $10 costs. All concur.