Majority
p. 80Helena Baas, Resp’t, v. Henry J. Pain, Impl’d, App’lt. (Supreme Court, General Term, Second Department, Filed July 28, 1893.)
Headnote
Depositions—Examination of defendant to enable plaintiff to frame AMENDED COMPLAINT.Where a defendant in an action against a co-partnership alleged to exist between him and others denies the existence of such partnership, an order for the examination of such defendant to enable plaintiff to ascertain the names of the persons who should be made defendants in an amended complaint may properly be granted.
Appeal from order for the examination of the defendant Henry J. Páin as a party to ascertain the composition of “ James Pain & Sons, London, England, represented by Henry J. Pain.”
Action was begun by the plaintiff against James Pain, Henry Pain and John Doe by service of the summons and complaint on Henry J. Pain.
The complaint charged a copartnership as existing between said defendants. The answer denied it. The action was brought for damages to plaintiff by fireworks set off at Coney Island.
Upon receipt of the answer, plaintiff at once moved to examine defendant Henry J. Pain to ascertain who were the proper parties defendant, whom plaintiff had designated as Joe Doe, for the purpose of making such parties defendant and serving an amended or supplemental complaint
William S. Cogswell, for app’lt; Hector M. Hitchings, for resp’t.
This is an appeal from an order for the examination of the defendant, Henry J. Pain, as a party defendant to ascertain the composition of James Pain & Sons, to the end that the plaintiff may determine the names of the persons who should be made parties defendant in an amended complaint which is rendered necessary by the answer of the defendants.
We think the order was properly made and should be affirmed, with ten dollars costs and disbursements.
Barnard, P. J., concurs; Pratt, J., not sitting.