Majority
p. 489(75 Hun, 539.) DRAKE v. NEW YORK IRON MINE et al. (Supreme Court, General Term, Second Department. February 12, 1894.)
Headnote
Discovery—Disclosure of Defendant’s Occupation and Residence.Defendant is not entitled to an order requiring a disclosure of plaintiff’s occupation and residence, where a written offer by plaintiff’s attor
p. 490Argued before BROWH, P. J., and DYKMAH and PRATT, JJ.
ney to furnish the address and occupation of plaintiff, if it was desired for any purpose connected with the action, was refused, as such refusal shows an ulterior design in procuring the order.
Appeal from special term, Queens county.
Action by John E. Drake against the Hew York Iron Mine, impleaded with others. From an order granting a motion to require plaintiff’s attorney to give defendant the address and occupation of plaintiff, plaintiff appeals. Reversed.
For former reports, see 21 H. Y. Supp. 491, 1117, and 24 H. Y. Supp. 518.
The correspondence between the attorneys as to the address and occupation of plaintiff was as follows:
“Drake vs. N. Y. Iron Mine.
“April 26th, 1893.
“Roger M. Sherman, Esq.—Dear Sir: Will you please furnish me with the address and occupation of the plaintiff in this action?
“Yours, truly, . ' Frank E. Smith.”
“April 29th, 1893.
“Frank E. Smith, Esq.—Dear Sir: In reply to your favor of the 26th, inquiring the address of Mr. J. R. Drake, I have to say that, if you wish it for any purpose connected with the pending suit against the New York Iron Mine, for which you are entitled to it, I will give it to you. In this respect I shall be treating the defendant with more courtesy than I have received from it, for I had every impediment put in the way of service upon the president, after clearly explaining the purpose for which I wished to know his whereabouts, to the persons in charge of his office. Awaiting your explanation, I remain,
“Yours, truly, Roger M. Sherman.”
“May 1st, 1893.
“Roger M. Sherman, Esq.—Dear Sir: Yours of April 29 received. The object of my inquiry as to the residence and occupation of Mr. Drake was, to enable me to ascertain whether the pending action against the New York Iron Mine is properly brought in Queens county or not. Awaiting your early reply, I am,
“Yours, truly, Frank E. Smith.”
“New York, May 2nd, 1893.
“Dear Sir: In reply to yours of yesterday, I have to say that, inasmuch as all the defendants are nonresidents, and cannot complain of the venue, the reason you assign for your inquiry is doubtless a pretext for some other and real reason. Until you assign some reason relevant to this action for your inquiry, I do not perceive that I am called upon to give you Mr. Drake’s address.
“Yours, truly, Roger M. Sherman.
“F. E. Smith, Esq.”
Roger M. Sherman, for appellant.
Frank E. Smith, for respondent.
This is an appeal from an order requiring the plaintiff’s attorney to furnish the attorney for the defendant a sworn statement showing the occupation and residence of the plaintiff. There is doubtless sufficient power lodged in the court to make such or any order when it becomes necessary for the due and orderly progress of the action in which it is made; yet it is en
p. 491
tirely obvious that such power will never be exercised for any remote purpose. Courts make only such orders and permit such proceedings in actions as are relevant and essential to the legitimate conduct thereof. Ulterior designs of litigants cannot be fostered by the courts. This defendant has been offered all he can require for the purposes of this action, and the papers before us disclose an ulterior design in procuring this order. The attorney for the plaintiff made a distinct offer, in writing to the attorney for the defendant, to furnish him with the address and occupation of the plaintiff if it was desired for any purpose connected with the pending suit, and, as that offer was not accepted, there can be but one inference drawn from such failure to accept the same. We do not think the power of the court has been wisely exerted, and the order should be reversed, with $10 costs and disbursements. All concur.