Phillips v. Germania Mills — 10 N.Y. St. Rep. 40

Majority

p. 40

Fleming Stanhope Phillips, Appl’t, v. The Germania Mills, Resp’t.

(Supreme Court, General Term, First Department,

Filed June 18, 1887.)

Headnote

1. Examination before trial.

A previous order for the examination of the defendant’s treasurer and for the production of their books having been vacated because the books-were in another state and because of an offer to allow them to be inspected where they were. The plaintiff having subsequently asked leave to make

p. 41

such inspection and been refused, and a new order for the examination of said treasurer having been obtained. Held, that the said order of examination should not be vacated upon a renewal of the offer as to its books by the defendant.

2. Same—Form of order.

The order did not direct the treasurer to he examined as an officer of the defendant, but the affidavits showed that Ms examination was sought as an officer of the defendant. Held, the order was sufficient. That it was only necessary to state the name of the officer.

Appeal from an order vacating an order for the examination of the treasurer of the defendant.

Lamed & Curtis, for appl’tj Joseph A. Bhoudy, for resp’t.

The vacation of the previous order for the examination of Mr. Sternsburg and for the production of the defendant’s books was expressly affirmed upon the ground that it would have been a doubtful exercise of power upon the part of the court to make an order requiring a foreign corporation to bring its books from its principal office in a sister state to the state of Sew York for the inspection asked for in this case, especially after it had offered to allow the inspection of its books in the foreign state if the plaintiff desired to make such inspection.

Immediately after that decision the plaintiff asked leave to make the inspection which had been offered and which offer had been the ground upon which the previous decision of the general term proceeded, which leave was refused. He was then compelled to apply for the examination of one of the officers of the defendant in order that he might learn facts about the profits upon which his compensation depended of which he was ignorant and knowledge of which rested with the officers of the defendant, and after this order for examination was granted in view of the previous history of the case, it was too late to renew the offer to examine the books.

By a refusal unjustified under the circumstances of this case the plaintiff was put to the trouble of his motion and the defendant should not then be allowed to escape from such examination by agreeing to do that which it never should have refused.

The objection that Mr. Sternsburg is not directed to be examined as an officer of the defendant is not well taken. The affidavits show that his examination is sought as an officer of the defendant and the section of the Code simply requires the order to state the name of the officer whose examination is desired.

The order appealed from should he reversed, with ten dollars costs and disbursements.

Daniels and Bartlett, JJ., concur.