Jenkins v. Putnam — 6 N.Y. St. Rep. 425

Majority

p. 425

Frank M. Jenkins, Resp’t, v. John L. Putnam, App’lt.

(Supreme Court, General Term, Third Department,

Filed March, 1887.)

Headnote

1. Evidence—Examination op a party as a witness before the trial —Code op Civil Procedure, § 873—When should not be allowed.

The plaintiff's complaint states a cause of action for services and expenditures rendered by the plaintiff to the defendant upon defendant’s employment. The answer is a general denial. The defendant’s affidavit, upon which the order for examination of plaintiff was granted, in addition to the formal allegation required by section 873, Code of Civil Procedure, alleges that the defendant expects to prove by the plaintiff “ that he was not employed by the defendant, as alleged in the complaint.” Held, that in this case the order should not have been granted.

2. Same.

Whether, in any case, the Code of Civil Procedure confers the power upon the court to grant an order to permit a party to examine his adversary before trial upon the latter’s alleged case? Qucere.

Appeal from an order of the special term vacating an order to allow the defendant to examine the plaintiff before trial.

The plaintiff’s complaint states a cause of action for services and expenditures rendered by the plaintiff to the defendant upon defendant’s employment. The answer is a general denial.

The defendant’s affidavit upon which the order for examination was granted, in addition to the formal allegations required by section 872, Code Civil Procedure, alleges that the defendant expects to prove by the plaintiff “that he was not employed by the defendant, as alleged in the complaint.”

C. 8. Lester, for app’lt; John L. Henning, for resp’t.

In Adams v. Kavanaugh ( 37 Hun, 232 ), the plaintiff sought to foreclose a mortgage. The defendant interposed two defenses: 1. That the interest had been paid; 2. That the mortgage was usurious.

The plaintiff obtained an order for the defendant’s examination. In his affidavit he alleged that he desired to prove by the defendant that the interest had not been paid, and that the mortgage was not usurious. The court held that he was not entitled to the examination. The court held that the plaintiff’s examination of the defendant under section 870 of the Code of Civil Procedure, must be confined to facts which tend to establish the plaintiff’s cause of

p. 426

action, and he could not thus compel the defendant to disclose the facts constituting his defense.

In Fourth National Bank v. Boynton ( 29 Hun 441 ), the plaintiff sued upon a promissory note; the sole defense was usury. To this alleged usury the plaintiff was not a party. The plaintiff sought to examine the defendant before trial with respect to the alleged usurious transaction, but the court held that the Code afforded the plaintiff no such right, that the plaintiff could only examine the defendant before trial to establish his own case.

Chapin v. Thompson was in this department. We did not hold that the Code of Civil Procedure did not confer the power upon the court to grant an order to permit the plaintiff to examine the defendant relative to his defense, but held that in that case it ought not in the exercise of a wise discretion to be granted, we do not perceive that the statute necessarily limits the examination to the case alleged in the pleading of the moving party. The 873d section authorizes the judge granting the order in his discretion to “designate and limit the particular matters as to which he shall be examined.” This clause enables the judge to confine the examination to the moving party’s case, or, if “it is material and necessary for the party making the application ” to examine his adversary respecting the latter’s case, then to confine the examination within such limits as may seem to be reasonable.

In the present case, however, it is plain that the defendant wishes to make very much such an examination as we refused in Chapin v. Thompson.

We conclude, therefore, to affirm the order, without passing upon the question whether in any case a party may examine his adversary before trial upon the latter’s alleged case

Order affirmed, with ten dollars costs and printing disbursements.

Learned, P. J., and Mayham, J., concur.