Gilpin v. Appleby

The affidavits on which the order was made, which has been vacated, established all that was necessary to entitle the plaintiff to an examination of the defendants, before the trial, if they could be legally obliged-to submit to that examination. They have been sued for the recovery of the sum of $22,000 -charged to have been lost by gaming at No. 818 Broadway in the •city of New York. The money is alleged to have been won and received by the defendants, and to have been taken by its treasurer •from the Glamorgan Iron Company, a - corporation carrying on business in the state of Pennsylvania, and which has since made a general assignment for the benefit of its creditors to the plaintiff. The order for the examination of the defendants seems to have been vacated on the ground that the defendants’ evidence would tend to prove them guilty of a criminal offense under the laws of this state, for which they might be indicted and punished. But while that may be the tendency of the evidence obtained from them under the order, this fact did not relieve them of the obligation to submit to the examination, as it had been ordered. This objection has been found to be without legal support, in the consideration given to it m the case of the same plaintiff against John Daly. And these orders should likewise be reversed, with disbursements to the appellant.

Van Brunt, P. J., and O’Brien, J., concur.