Greene v. Carey — 31 N.Y.S. 8

Majority

p. 8

(81 Hun, 496.)

GREENE v. CAREY.

(Supreme Court, General Term, First Department.

November 16, 1894.)

Headnote

1. Discovery—Examination of Party before Trial.

The provisions of the Code for the examination of parties for information on which to base pleadings, or for use on the trial, cannot be employed by plaintiff to assist him in determining which of two causes of action he has.

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3. Same—Production oe Papers.

An order requiring a prospective defendant to produce his books at an examination by plaintiff to enable the latter to prepare his complaint is erroneous.

Appeal from special term, New York county.

Action by Francis V. Greene, as president, etc., against Frederick B. Carey. From an order denying a motion to vacate an order for defendant’s examination and the production of his books, defendant appeals.

Reversed.

The defendant entered into a contract with plaintiff, by the terms of which the privilege was accorded him of obtaining advertisements to be inserted in a souvenir volume, and, as a consideration for such privilege, the defendant agreed, at his own expense, to print and deliver to plaintiff 3,000 copies of the book, and, in addition, to pay 25 per cent, of the gross amount received for advertisements. The plaintiff alleges that but 1,000 copies of the book were ordered, printed, or delivered; that the defendant failed to keep accurate books of account of his receipts, or to pay the proportion thereof that was due the plaintiff; and that he unlawfully solicited subscriptions for furnishing the Armory, for which he has never accounted. The affidavit then states “that the action which deponent is about to bring against the defendant on behalf of said board is to compel said Carey to specifically complete his contract, and to recover moneys due under said contract, and to recover subscriptions unlawfully collected by him; * * ■■■ and the examination of said defendant is absolutely necessary in order that he may prepare his complaint.”

Argued before VAN BRUNT, P. J., and O’BRIEN and PARKER, JJ.

Abram Kling, for appellant.

Henry S. Van Duzer, for respondent.

It is evident from a reading of the affidavit, and considering the form of action contemplated, that all the facts necessary to formulate the complaint are within the plaintiff’s knowledge. It may be that, for the purposes of a trial, an examination of the defendant may be necessary; but, in order to prepare a complaint, no facts in addition to those that the plaintiff swears to would be necessary, assuming, as the portions of the affidavit quoted would seem to indicate, that the plaintiff intends to bring a suit in equity for specific performance and an accounting. The plaintiff claims, however, that he is in doubt as to whether he shall bring such an action or one at law, and that the examination is required in order that he may determine this question. We do not think he is entitled to any such relief, the provisions of the Code confining examinations of parties to the eliciting of information which shall enable a plaintiff to frame his complaint, or for use on the trial, and not for the purpose of determining whether he has one or the other of two causes of action.

The order is also improper in that it directs the production of the -defendant’s books, the most that the plaintiff could claim being the right to examine the defendant; and if, in that connection, for the purpose of testifying, resort to the books were necessary, the defendant would be required to refer to the books for the purpose of giving the desired information. Considerable latitude is always permitted with respect to the examination of an agent by a prin

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cipal, or by one towards whom the person being examined stands in a fiduciary relation, where the facts are peculiarly within the knowledge of the one under examination, but the rule permitting such latitude does not go to the extent of allowing a person to ascertain all the defendant’s evidence, with a view to selecting one of two causes of action against him. As the plaintiff here has sufficient information, as shown by his affidavit, to frame a complaint in a suit in equity, he should not, upon the ground that perhaps he might bring an action at law, be permitted to speculate upon the results of the examination of the defendant and his books, or the facts that he might unearth thereby.

We think that the affidavit upon which the order was granted was insufficient, and the order itself too broad, and that, for these reasons, the order should be reversed, with $10 costs and disbursements, but without prejudice, and with leave to plaintiff to renew the application upon proper papers, after he has determined the form of his action, if he can show that any information peculiarly within the knowledge of the defendant is essential to enable him to frame his complaint, or necessary for use upon the trial.