Howe v. Learey — 41 N.Y. St. Rep. 473

Majority

p. 473

Albert Howe, App’lt, v. Thomas J. Learey, App’lt, and Jessie Learey, his Wife, Resp’t

(Supreme Court, General Term, Second Department,

Filed December 14, 1891.)

Headnote

1. Depositions—Examination before trial.

Where facts and circumstances are shown which justify an examination of a party so that a pleading may be framed for the trial of an issue, the order should be granted.

2. Same—Foreclosure.

An affidavit made by a wife, who is a defendant in an action of foreclosure, showing that the assignment of the mortgage to plaintiff was paid for by her husband, and that he has ill treated her and threatens to deprive her and their child of his property, is sufficient to authorize an order for the examination of her husband and the plaintiff in order to enable her to frame her answer.

Appeal from order denying motions by plaintiff and the defendant Thomas to vacate order for their examination to enable defendant, Jessie Learey, to frame her answer.

Action to foreclose two mortgages acquired by plaintiff by assignment from the Irving Savings Institution.

The affidavit on which the order for examination was granted, in addition to the particulars required by § 872 of the Code, proceeded as follows:

“ That the plaintiff and the defendant, Thomas J. Learey, are conspiring and colluding together to defraud deponent of her rights in the land described in the complaint, and that this action is collusive, and an attempt to defraud deponent and to deceive the court and to use the machinery of justice to effect a wrong and a fraud.

“ That the plaintiff is not the real owner of the alleged bonds and mortgages; that the same were bought expressly for the purpose of bringing this suit; that the money of the said Thomas J. Learey was used to purchase the same and not the money of the plaintiff; that the assignment of the same ought equitably to be treated, so far as this defendant is concerned, as a satisfaction thereof.”

p. 474

The affidavit also specified, among others, the following facts and circumstances to show that the examination was material and necessary:

That her husband, Learey, had manifested hostility to her, threatened to leave all of his estate which the law would permit to his children by a former wife, and attempted to induce her to release her dower.

That interest on the mortgages in suit was paid January 1st last, the assignment of them to Howe made on April 9th, and this suit commenced the following day, April 10th last.

That Howe, the plaintiff, and Learey, the co-defendant and husband of Mrs. Learey, are, and have long been, friends.

Thomas F. Donnelly, for pl’ff., app’lt; Fromme Bros., for app’lt Learey ; Arnoux, Ritch & Woodford (Edward M. Grout, of counsel), for resp't.

This action is brought to foreclose mortgages on real property owned by the defendant, Thomas Learey. The mortgages were acquired by the plaintiff by assignment from the Irving Savings Institution. The mortgages were on the property when Learey bought. The defendant, Jessie Learey, obtained an order to examine the plaintiff and her husband. The order was obtained before answer. The affidavit upon which the order was granted was sufficient under § 872 of the Code, subd. 4. No objection is made to the affidavit in any other respect than that no defense is proven to the action and no sufficient facts and circumstances are established to justify an order for the examination. There is a defense shown, if true. Learey has conspired with the plaintiff to assert the validity of the mortgages which were acquired with Learey’s money for the purpose of cutting off the rights of his wife therein. If Howe merely holds the title to the mortgages by an assignment when the same are paid in fact by the owner of the title, it will make a defense on the trial if proven. The husband is on ill terms with his wife; treats her with cruelty; is attempting to obtain her signature to a mortgage to cut off her dower. While he is of substantial means, he supports his wife and children with great meagerness. He threatens to cut off his wife and children from his estate so far as permitted by law. These facts and circumstances are sufficient -to justify the order. The wife is entitled to know the particulars of the transaction so as to frame her answer. The rigid rule that if a party do not actually know the facts which make the defense no order to examine can be granted would render the section of the Code in question of little practical use. The section shpuld have a broader scope. Where facts and circumstances are shown which justify an examination of a party so that a pleading may be framed for the trial of the issue, the order should be granted.

The notice of the defense and the facts and circumstances to show that an examination is material and necessary are sufficiently stated, and the order should be affirmed, with costs.

Dykman, J., concurs ; Pratt, J., not sitting.