Govin v. De Miranda — 44 N.Y. St. Rep. 386

Majority

p. 386

Luiz D. Govin, App’lt, v. Luciana G. De Miranda et al., Resp’ts.

(Supreme Court, General Term, First Department,

Filed February 18, 1892.)

Headnote

Doweb—Action bob becoveby—Examination bebobe answeb.

In an action brought for the recovery of dower, defendant, before answer, applied for an order to examine plaintiff, upon an affidavit in which the defense is stated to be a denial that plaintiff is the widow of the deceased, and which further alleged, on information and belief, that she was his mistress, but claimed that a marriage contract in writing had been entered into in presence of witnesses; that deceased and plaintiff were natives-of Cuba, and that it was a very common provision in marriage contracts-there that in consideration of a present settlement all future claim upon the-husband’s estate shall be released. Held, that defendant did not need the examination to frame his answer; that it was apparently wanted to find out whether he had any defense to plaintiff’s claims, and, therefore, should be denied.

Appeal from an order denying a motion to vacate order for examination of plaintiff before answer.

B. N. Cardozo, for app’lt; Edward K. Jones, for resp’ts.

This action was brought for the recovery of dower in lands of which, her alleged husband died seized. Before answer the defendant applied for an order to examine the plaintiff upon an affidavit, in which the nature of the defense is stated to be a denial of the allegation that the plaintiff is the widow of the deceased, and therefore not entitled to dower. In this affidavit it is also alleged, upon information and belief, that the plaintiff was the mistress of the deceased, but-that she claimed that a marriage contract in writing, in the presence of witnesses,, was entered into between the deceased and herself, which was left with the deceased for safe-keeping; but that no such marriage contract was found among the papers of the deceased. It is also averred, on information and belief, that the deceased and the plaintiff are natives of Cuba, although residents of this state-for a part of the time, and that it is a very common provision in. marriage contracts there that in consideration of a present settlement all future claims upon the husband’s estate shall be released.

The court granted the order for the examination of the plaintiff concerning the matters stated in the affidavit and such other matters as may be relevant to the proposed issues in the action. Upon the return of this order a motion was made by the plaintiff to vacate the same, and an order was thereupon made limiting

p. 387

the same to an inquiry as to the nature and contents of the alleged contract of marriage referred to, and the facts and circumstances attending its execution, and from this order this appeal is taken.

It is clear that the defendant does not desire this examination to frame his answer because it is stated that the nature of the defense is a denial of the allegation of the plaintiff that she is the widow of the deceased, and certainly no examination is needed to frame an answer setting up this defense. But it is urged that' an -examination is needed to show the terms of the marriage contract to ascertain whether there was not a waiver therein of claims upon the husband’s estate, as is customary in Cuba. The manifest answer to this claim is, that this has nothing to do with the defense which is set forth in the affidavit, which is a denial of any marriage. Furthermore, it is apparent that the examination is wanted in respect to this contract not to enable the defendant to frame an answer, but to find out whether the defendant has any defense to the claim of the plaintiff. Examinations of this character are never allowed for such a purpose.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the order for examination vacated.

Lawrence, J., concurs!