p. 738Charles P. Hemenway et al., Resp'ts, v. Morris F. Knudson et al., App'lts.(Supreme Court, General Term, First Department,Headnote
1. Depositions—Intebbogatobies.Unless an interrogatory or cross-interrogatory is manifestly impertinent, and improper, it should be allowed on the preliminary settlement. The rights of the parties may he protected by allowing the interrogatories subject to objection on the trial.
A cross-interrogatory which cannot be pertinent to any of the issues, and is not asked for the purpose of elucidating any testimony to be used on the trial, should be excluded.
Appeal from order allowing and disallowing and failing to-settle interrogatories.
Geo. A. Black, for app’lts;
Wm. M. Ivins {John S. Melcher, of counsel), for resp’ts.
Upon an examination of the cross interrogatories, the exclusion of which forms the subject-matter of this appeal, it would appear that most of them were certainly pertinent' to the subject matter inquired of by the direct interrogatories of the various witnesses; and they certainly were not so clearly irrelevant to the issues which were involved, and to the testimony sought to be introduced by the direct interrogatories, that the court, at special term, in the settlement of interrogatories, should have excluded the same. The rights of the parties could have been amply protected ■ by allowing the interrogatories, subject to' objections upon the trial. It is impossible, in advance, for the court to know precisely how the evidence will shape itself upon the trial; and, unless the interrogatory or cross interrogatory is-manifestly impertinent and improper, it should be allowed upon this preliminary settlement.
There is one cross interrogatory, however, which cannot be-pertinent to any issue which can be presented for solution upon the trial of this case; and that is the third, when the witness is-
p. 739asked to state the respective interests of members of two firms, one of which is a party to the action and another is not, both as to its assets and profits. This question- is entirely unnecessary, improper, and not asked for the purpose of elucidating any testimony which may be offered during the progress of the trial, and, therefore, was properly excluded. We think the order appealed from should be reversed as to the other cross interrogatories, and the said cross interrogatories allowed, subject to objection upon the trial, and affirmed as to the third cross interrogatory, without costs of this appeal.
O’Brien and Barrett, JJ., concur.