Wahle v. McMillen — 48 N.Y. St. Rep. 32

Majority

p. 32

Charles G. F. Wahle, Ex’r, Resp’t, v. Samuel McMillen, App’lt.

(City Court of New York, General Term,

Filed October 24, 1892.)

Headnote

1. Depositions—Examination before trial.

If the information sought is necessarily wholly within, or more within the knowledge of the defendant than of the plaintiff, an order for the examination of the defendant to enable the plaintiff to frame his complaint should be granted, especially where the plaintiff is suing in a representative capacity.

2. Samé—Affidavit.

Plaintiff’s affidavit showed that he had discovered in his testator’s books of account a running account with defendant consisting of items of credits and charges, showing a balance against him, nut is unable to find any explanatory entries, and has been informed by testator’s relatives that there was an agreement with defendant as to the rental of certain premises and that he believes that the rental of such premises is embodied m said account, but is unable to prepare his complaint without an examination of defendant. Held, that the affidavit was. sufficient to support an order for such examination.

Appeal by defendant from an order directing his examination before trial, for the purpose of enabling plaintiff to frame his complaint.

Edward C. Stone, for resp’t; John C. Shaw, for app’lt.

The plaintiff, suing as an executor, seeks, after service of summons and. before trial, an examination of the defendant in order to enable him to frame his complaint, and his affidavit, upon which such examination was ordered, sets forth that lie has discovered in the books of account kept, owned and left by his testator, a running account with defendant, which shows items of charges against and credits to defendant, and that the same shows a balance of $283.42 as due the testator from defendant ; but that he has been unable to discover any explanatory entries in the books as to these charges and credits, although he has been informed by some of his, testator’s, relations that there was some agreement by his testator and defendant as to the rental of certain named premises, and that he believes that the rental of said premises is embodied in said account, and that he has fully and fairly stated the case to his counsel; that he has a good and substantial cause of action on the merits, as he is advised by .such counsel, which he verily believes, and that he is unable to properly frame his complaint, and therefore seeks to examine defendant in order to do so. The defendant did not interpose any opposing affidavits, but merely moved to vacate the order on the papers upon which it was granted, and this appeal is from the order refusing to vacate. The rule with regard to the examination of a party before trial is one of discretion. Herbage v. City, 109 N. Y., 81 ; 14 St. Rep., 845 . It is, therefore, flexible, and must be adapted to and controlled by the facts and circumstances of each case, considered with reference to the relations existing between the parties. Carter v. Good, 57 Hun, 116 ; 32 St Rep., 501 .

0. If the information sought is necessarily wholly within, or more within the knowledge of one party than the other, an order for the examination of such other should be granted, and especially so when the party seeking the examination of his - adversary is suing, as this plaintiff, in a representative capacity. In the case of Raymond v. Brooks, 59 How., 383 , where the plaintiff was suing as an administrator, the court said, in sustaining an order for examination of the defendant, “ The plaintiff, suing in a representative capacity, and not having personally participated in the matters concerning which inquiry is sought, properly enough asks that he may be allowed to examine one of the defendants, who is reasonably supposed to have the knowledge, to ascertain the facts.” The plaintiff’s affidavit is sufficient to sustain the order, and the same is affirmed, with ten dollars costs.

Ehrlich, Ch. J., concurs.