Downey v. MacAleenan

This is an appeal from an order granting motion made by plaintiff to direct the defendant herein to permit an inspection of the goods replevined in this action, and which were reclaimed by the defendants herein. The defendant MacAleenan is a-pawn-broker, duly licensed, and this is an action of replevin against him to recover possession of certain property alleged by plaintiff to be in Mr. MacAleenan’s possession. The-summons, affidavit and requisition were issued to the coroner of this county on the j.4th day of October, 1891, and received by Mr. Hawkes, the deputy coroner'in charge, of such actions.

The defendant MacAleenan responded, serving his affidavit, and undertaking for the return of the chattels upon the coroner as well as upon Mr. Bien, the plaintiff’s attorney, on October 26th, 1891. The coroner took possession of the property shortly after October 14th, 1891, when he received the original writ

At the same time, that is to say, on the twenty-sixth, the notice of justification for the ,28th October was served upon the coroner and upon Mr. Bien, the plaintiff’s attorney. On the morning of the 28th October, 1891, the defendant’s sureties on his undertaking for the return of the chattel justified before Justice Tan Wyck; the defendant’s undertaking was thereupon approved by Judge Van Wyck and his property forthwith returned to the defendant MacAleenan, who has ever since had it It therefore appears that the coroner had the .property lourteen days in his possession before he returned it to the defendant MacAleenan.

In the meantime plaintiff had' not seen or inspected the-property, and on or about the 29th October, 1891, he made a. motion for an order to direct the defendant MacAleenan to allow it to be inspected. He made this motion upon an affidavit alleging that on October 28th, the date the coroner returned this

Mr. Hawkes, the deputy coroner, says that he never received any such notice, until after the property was delivered back to the defendant MacAleenan. Then, in answer to Mr. Hawkes, Mr. Bien makes an affidavit, in which he says that he did not give notice to Mr Hawkes personally, but left it on his desk in the county courthouse.

These affidavits, therefore, do not conflict, and it must, therefore, be said that it stands admitted that Mr. Hawkes did not get this notice until after he had given back the property to the defendant MacAleenan.

The motion Mr. Bien made for an inspection was opposed by the defendant MacAleenan upon certain grounds, and came on for argument before Mr. Justice McGown, who granted the motion. Upon his decision, an order was entered on December 7, 1891, directing the defendant MacAleenan to allow an inspection of the goods in question within three days from the service of a copy of the order upon his attorney. And it is from this order that the defendant MacAleenan appeals, and desires now to be heard by this court.

The order from which the appeal is taken is found on the first page o£ the printed papers on appeal. The order to show cause, upon which said order was granted, is found at page 3 of the printed papers. The affidavit and notice upon which the order to show cause was granted are found at pages 4 to 7 inclusive. The affidavit in opposition at pages 8 to 11 inclusive; and the affidavit in reply to this at pages 11 and 12. The original summons, notice, affidavit and undertaking in replevin in this action are found at pages 13 to 18 inclusive. The notice, demand for the return, ana the undertaking for the return, and the affidavit of the defendant MacAleenan made in said action are found at pages 19 to 25 inclusive of the case. The proof of service of this upon Mr. Bien on the the 26th October, 1891, at page 25 of the case. And the notice of appeal from the order of Mr. Justice McGrown is found, at page 26 of the case.

The property is now in the possession of the defendant and is the subject of the present litigation. We have examined the books carefully for precedent to sustain the position claimed by the respondent, and with the exception of Walsh v. Sayres, 52 How., 334 , can find none. This case is a superior court, special term, decision and has not the support of authority.

On the contrary the superior court, general term, in Neuman v. Third Ave. R. R. Co., 50 Supr. Court (J. & S.), 415, Ingraham, J., says : “ The case of Walsh v. Sayre, 52 How. Pr., 334 , is the first case in which such an application was passed on by the court that I have been able to discover. That was an action against a physician for malpractice and on application of the defendant, the special term of this court ordered the plaintiff, an infant, to submit to an examination. It was admitted by the learned judge in

“ The position taken by that case, that the abrogation of the rule that a party interested in the event of an action cannot be permitted to testify removes all restraint and leaves the court to unfettered action except so far as it is curbed by the provisions of the statute, appears to me broader than can be sustained. The •effects of the removal of the restriction is, that rules for the examination of the party thus allowed to testify should be governed by the rules applicable to the examination of other witnesses. It gives the court no greater power over such parties than it had over other witnesses. The provision of the Code is that except •otherwise specifically prescribed, a witness shall not be excluded or excused from being a witness by reason of his or her interest in the event of an action, etc. Code Civ. Pro., § 828.”

The courts have uniformly refused to compel a party to submit property or chattels that were the subject of controversy to the inspection of experts or to the adverse party. Ansen v. Tuska, 19 Abb. Pr., 392 , 393; see Supreme Court of United States, Union Pacific Railway v. Botsford, Albany Law Journal, October 24, 1891; also, N. Y. Law Journal, Dec. 28, 1891; Miner v. Gardiner, 4 Hun, 132 .

The court had no power to make the order. Roberts v. Ogdensburgh & L. C. R. R. Co., 29 Hun, 154 , 156; see, also, 50 Supr. Ct., 416.

In Cooke v. Lalance Grosjean Mfg. Co., 29 Hun., 643 , Dykman, J., says: “ We find neither precedent nor authority for this order under the common law, the Revised Statutes and the Code of Civil Procedure.”

The plaintiff had an opportunity to examine and inspect the property in question between October 16 and October 28, 1891, while it was in the care and possession of the coroner, but he did not do so. The first move on plaintiff’s part was the leaving of a notice on October 28, 1891, at the office of the coroner, demanding an inspection of the chattels. It was not served personally on the coroner or his deputy, and the property had been twelve days in their possession. The plaintiff was therefore guilty of loches and must suffer the consequences. He certainly cannot now call upon this court to exercise an unprecedented power to furnish him with an opportunity for such examination in order to repair the consequences of such negligence.

Section 2706, Code of Civil Procedure, is the only section which gives the power of inspection or discovery over personal property, but this only applies to matters within the jurisdiction of the surrogate.

For these reasons the order appealed from should be reversed, •with costs.

Ehrlich, Oh. J., and Fitzsimons, J., concur.