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Walton v. Godwin

27 N.Y. St. Rep. 86 Court N.Y. Gen. Term Decision date 1889-11-07 English

Delivered by Van Brunt, P. J.

Contents

Majority

p. 86
Frank Walton, Resp’t, v. Parke Godwin, App’lt.
(Supreme Court, General Term, First Department,
Filed November 7, 1889.)

Headnote

Depositions—Commission—Interrogatories.
Where an interrogatory is clearly irrelevant and is apparently put for the purpose of eliciting information as to other claims in no way connected with any issue presented by the pleadings, it should not be allowed.
Appeal from order allowing certain interrogatories.
Nelson Smith, for app’lt; W. W. Badger, for resp’t

Although it is true that the general rule is to allow all interrogatories which may be propounded under a commission, leaving the question of the admissibility of the evidence to be determined at the trial where it can be much better and more intelligently done than upon the settlement of the interrogatories, yet where an interrogatory is clearly irrelevant, and is apparently put for the purpose of eUiciting information in no way connected with any issue presented by the pleadings in the action, such interrogatory should not be allowed. Applying this rule to the interrogatories now before the court and which are put by the plaintiff by way of cross-examination, it would appear that no error was committed in the allowance of the 8th, 9th and the first paragraph of the 10th.

There were issues presented which related to the good faith of the opera company in the charge of plaintiff’s assignment and also to the truth of the statements contained in the report signed by the defendant as to the assets of the opera company, and these interrogatories were pertinent to these issues.

The last clause of the 10th interrogatory and the whole of the 14th seem to be improper. The 14th in no way tended to elicit any evidence in any way connected with the issues presented in this action, but seems to have been put for the purpose of procuring information which might affect other claims which had been or might be presented against the signers of the report in question.

The order appealed from should be modified, disallowing the last clause of the 10th interrogatory and the whole of the 14th, and, as so modified, affirmed, without costs.

Daniels and Brady, JJ., concur.