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Balcom v. Adams

18 N.Y. St. Rep. 13 Court N.Y. Gen. Term Decision date 1888-09-24 English

Delivered by Learned, P. J.

Contents

Majority

p. 13
Fannie Balcom, Adm’rx, etc., Resp’t, v. Maggie Adams, App’lt.
(Supreme Court, General Term, Third Department,
Filed September 24, 1888.)

Headnote

1. Practice—Examination before trial—Power of special term to CHANGE TIME OF EXAMINATION OR MODIFY ORDER—CODE ClYIL PRO., §873.
The plaintiff obtained an order to examine defendant before trial. The order by its terms was to be served on or before June eleventh, and the examination was to be on June sixteenth. On June sixteenth a motion was made to vacate said order on the ground that it was not properly served by reason of a failure to serve all the affidavits. This was denied, but the ■order denying such motion changed the time of examination in the first-mentioned order from June sixteenth to August second, and ordered de
p. 14
fendant to be then examined, etc. Held, that under Code Civil Procedure, § 873 (which provides that the examination shall take place not less, than five nor more than twenty days after the time fixed for the service of the order), the special term could not properly appoint a day for examination more than twenty days after June eleventh. That whether the special term had any power to modify the first-mentioned order was doubtful.
2. Same—Provisions of statutes must be strictly followed.
This power of examination is strictly statutory and the precise provisions of the statute must be followed.
3. Same—Application not favobed where object to enable plaintiff TO PROVE HIS COMPLAINT.
The application for an order to examine stating that it is in order to prove her complaint (no complaint having yet been served), should not be favored.
On May 29, 1888, plaintiff obtained from. Judge Fish an order to examine defendant before trial. This was set aside by Judge Fish June second.
June seventh plaintiff obtained another order of like character from Judge Putnam, “on the affidavit of Jesse Stiles verified June 5, 1888, and the affidavit of plaintiff sworn to June 7, 1888, the_ order granted by Justice Fish, and the papers mentioned in said order and served.” The examination was to be June sixteenth. The order required the service of the two affidavits of Jesse Stiles and of plaintiff.
On an order to show cause the defendant moved before Judge Fish July 16, and obtained the order from which this appeal is taken.
That order recites that it appears that the affidavits and orders on which plaintiff’s order to examine was obtained from Judge Putnam were sufficient, but that the order was not properly served by reason of a failure to serve all the affidavits. It denies the motion to vacate; changes the time in Judge Putnam’s order from June sixteenth to August two, and orders defendant to be then examined, and also orders a copy of this order to be served on defendant’s attorney on or before July twenty-eighth, which shall be sufficient service.
Charles M. Davison, for app’lt; Jesse Stiles, for resp’t.

The Code, section 873, provides that the examination shall take place not less than five nor more than twenty days after the time fixed for the service of the order. The time fixed by Judge Putnam’s order for service was on or before June 11; for examination June 16. The special term could not properly appoint a day for examination more than twenty days after that time.

Whether the special term had any power to modify the order of Judge Putnam is at least doubtful. Heishon v. Knickerbocker L.

p. 15
This power of examination is strictly statutory, and the precise provisions of the statute must be followed. Roy v. Harriot, 30 Hun, 77 .

The application for an order to examine is stated to be made in order to enable plaintiff to prove her complaint; no complaint having yet been served. This kind of application should not be favored.

A plaintiff should not try his case before issues are framed. And in ordinary and simple cases there can be no difficulty in framing a complaint, and no need of examining a defendant for that purpose.

It is not right to use this provision of the Code in order to find out what chance of success the plaintiff may have.

In this very case the plaintiff’s own affidavit states facts enough from which a complaint could be drawn. The cause of action there alleged is that defendant received of plaintiff’s intestate in his life-time, goods, wares and merchandise; and that said intestate performed for defendant work, labor and services; that defendant is in possession of personal property belonging to said intestate at his death. The plaintiff says she does not know the exact amount of the indebtedness, or the quantity of the goods, etc. But it is not necessary that she should know this in order to frame her complaint.

Furthermore it is stated in one of the plaintiff’s affidavits, that she has had the defendant cited before the surrogate in regard to the estate and property of the deceased, and that defendant by wholesale affidavit and swearing had deprived plaintiff of such examination. From this it may be inferred that defendant claims to own the property which plaintiff seeks to recover.

We see then no reason why the plaintiff cannot, on the facts, shown in her affidavit frame a complaint sufficient for her alleged cause of action. Should the defendant require further particularity in the complaint, the plaintiff will be able to show defendant’s refusal to give the knowledge she is alleged to have.

The order appealed from should be reversed with ten dollars costs and printing disbursements, and the order granted by Judge Putnam should be vacated with ten dollars costs.

Landon and Ingalls, JJ., concur.

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