Farmer v. National Life Ass'n — 56 N.Y. St. Rep. 154

Majority

p. 154

Thomas Farmer, App’lt, v. The National Life Association of Hartford, Conn., Resp’t.

(Supreme Court, General Term, Second Department,

Filed December 1, 1893.)

Headnote

1. Deposition—Examination op party before trial.

Where the information essential to enable the defendant to draw an answer, which can be intelligently and honestly verified, is in the possession of the plaintiff, and the defendant has no means for the acquisition of such knowledge except by an examination of the plaintiff, an order for the examination of the latter is properly granted.

2. Same—Crimination.

The fact that the answers to questions propounded to him may criminate him, is no defense to the application, or ground for the vacation of the order, but such objection may be raised ana the point determined when the questions are propounded.

Appeal from an order denying a motion to vacate an order for the examination of the plaintiff to enable the defendant to frame its answer.

Judge & Durada {James P. Judge, of counsel), for app’lt; Roger Foster, for resp’t.

This is an appeal from an order denying a motion made by the plaintiff to vacate an order for his examination before trial to enable the defendant to frame its answer. The affidavit upon which the order for the examination was obtained states among other things that the action is upon a policy of life insurance for the recovery of $3,000 upon a policy, made by the defendant to one Thomas J. Brady upon his life, which it is alleged was assigned by Brady to the plaintiff in this action. The defense to the action is, that, at the time of the issuance of the policy, it was the intention of the assured and of the plaintiff also that such insurance should be taken out for the benefit of the latter only. That the plaintiff was the person who paid the premium upon the policy of insurance, and that he had then and had thereafter no insurable interest in the life of Brady, that Brady never applied for a policy, and that it was obtained by fraud, that another man who falsely represented Brady was examined by the defendant’s medical examiner before the policy was issued, and that it was so issued upon an application therein referred to which contained warranties and representations respecting the health and occupation of Brady, which warranties and representations were intentionally false, and that the policy never had a lawful inception, and was null and void.

It is further alleged that the examination of the plaintiff is material and necessary for the defendant to enable it to draw an answer and make its defense to the action. The affidavit is sufficient to justify the issuance of the order for the examination of plaintiff. The information essential to enable the defendant to draw an answer which can be intelligently and honestly verified is in the possession of the plaintiff, and the defendant has no means for the acquisition of such knowledge except by an examination of the plaintiff. The vacation of the order was sought principally

p. 155

upon the ground that upon the examination of the plaintiff he might be required to give answers which would subject him to a criminal prosecution, but that objection is premature. The plaintiff must submit to the examination , and if it appears then that answers to questions propounded to him may criminate him, that will be the time to raise the objection and have the point determined, but it is not apparent that the matters upon which it is sought to examine the plaintiff involve any criminality, it is merely sought to ascertain the insurable interest of the plaintiff in the life of Brady and whether it was the intention of the plaintiff that the policy should be issued to Brady and assigned to him.

Our conclusion, therefore, is that the refusal to vacate the order for the examination of the plaintiff was justifiable, and should be affirmed, with $10 costs and disbursements.