Schmerber v. Reinach — 58 N.Y.S. 84

Majority

p. 84

SCHMERBER v. REINACH.

(Supreme Court, Appellate Division, First Department.

February 17, 1899.)

Headnote

Discovery—Examination of Party before Trial—Necessity.

Where plaintiff makes affidavit that defendant, whom he employed to collect a legacy, had collected a certain amount, and paid over a portion thereof, but had refused to account for the balance, plaintiff is not entitled to an examination of defendant before trial, such being unnecessary for framing the complaint.

Appeal from special term.

Action by Fernand Schmerber against Max Reinach. From an order refusing to vacate an order for his examination before trial, defendant appeals.

Reversed.

Argued before VAN BRUNT, P. J., and BARRETT, RUMSEY,. PATTERSON, and O’BRIEN, JJ.

E. W. S. Johnston, for appellant.

C. D. Cruikshank, for respondent.

The affidavit of plaintiff contains all the facts necessary to make a good complaint. It alleges that defendant agreed to collect the legacy, and plaintiff gave him a power of attorney for that purpose; that defendant, acting under that power, had collected $13,-500; that he paid plaintiff $4,000, and refused to pay any more ov account for the remainder. That is a good complaint, and the plaintiff does not need any examination to enable him to set it up, as he already is able to aver those facts on oath. It may be that, when the issue is formed, he will need the evidence of the defendant to enable him to prove his case. But he does not need it to enable him to frame his complaint. The order was therefore prematurely granted.

The order denying the motion to vacate should therefore be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs.