Dorf v. Walter — 46 N.Y. St. Rep. 20

Majority

p. 20

Elias Dorf, Resp’t, v. James N. Walter, Impl’d, App’lt.

(City Court of New York, General Term,

Filed April 5, 1892.)

Headnote

1. Depositions—Examination op dependant before trial.

An order for the examination of a defendant for the purpose of enabling the plaintiff to prepare an amended complaint may be granted in the" discretion of the court.

3. Same.

A claim that the examination is for the mere purpose of annoying the defendant is no objection to the granting of such order, as the court has power to keep the plaintiff within proper bounds, and ward off all inquiry which is vain or curious.

Appeal from order for the examination of the defendant before trial.

Kurzman & Frankenheimer, for appl’t; Hayman, Marx & Rosenthal, for resp’t.

This is an appeal from an order directing the defendant, James N. Walter, to appear before one of the justices of this court at special term, and be examined, and his deposition

p. 21

taken in pursuance of §§ 870 and 872, Code of Civil Procedure.

The application was made by the plaintiff for the purpose of being able to prepare an amended complaint.

The affidavits on the part of the plaintiff disclose a very peculiar situation and were sufficient in form and purpose to demand, on the part of the justice to whom they were presented, the exercise of a sound discretion. ■

The granting of such an order rests within the sound discretion of the court. Jenkins v. Putnam, 106 N. Y., 276 ; 8 St. Rep., 710 .

It is claimed that this examination is not material and necessary, but merely for the purpose of annoying and harassing the defendant Walter.

We are of opinion that the examination is material and necessary.

As to the question of annoyance, we think it is for the judges now, under the rules of practice and by the rulings at the examination, to keep the plaintiff within the proper bounds and to ward off from the defendant all inquiry which is vain or curious. Raymond v. Brooks, 59 How. Pr., 383 .

Folger, J., in Glenney v. Stedwell, 64 N. Y., 122 , says, “ That a plaintiff in an action pending may examine the adverse party on oath before the service on him of a complaint and for the purpose of obtaining the facts on which to frame a complaint.”

Barrett, J., in Brisbane v. Brisbane, 20 Hun, 49 , quoting from Folger, J., in above case, says: “The expression in § 391 of the old Code, ' At any time before the trial,’ which in the above case (Glenney v. Stedwell) was deemed to cover an examination before as well as after issue, is also to be found in § 870, Code of Civil Procedure.”

We, therefore, think no error was committed and that the order appealed from should be affirmed, with ten dollars costs and disbursements.

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