Earle v. Beeman — 72 N.Y. St. Rep. 353

Majority

p. 353

Artemus H. Earle, App’lt, v. Helen M. Beeman et al., Resp’ts.

(Supreme Court, Appellate Division, Third Department,

Filed January 20, 1896.)

Headnote

Deposition—Discovery and inspection.

A defendant is not entitled to an order for inspection of notes sued on before answer, unless it is necessary to the preparation of the answer.

Appeal from an order allowing defendants an inspection of notes.

The complaint alleges that the notes were made by Nathan Bee-man, the husband of the defendant, pursuant to the defendant’s

p. 354

direction, and indorsed by the plaintiff as an accommodation indorser, and that the defendant, and her husband, as her agent, negotiated them for her benefit; and that siie had and used the proceeds, or her husband used them for her benefit; which notes the plaintiff subsequently had to pay. The plaintiff, pursuant to the defendant’s demand, served a bill of particulars upon the defendant, giving the dates and principal of each note, and the respective sums which the p,Qintiff claims to have paid upon each one of them. The defendant then moved to inspect the notes, to enable her to frame her answer, and the motion was granted.

John P. Kellas, for app’lt ; Gordon H. Main (William P. Cant-well, of counsel), for resp’ts.

—We do not think the defendant’s petition shows that she cannot properly frame her answer ur h so she is allowed to inspect the notes mentioned in the plaintiff's bill of particulars. She states in the petition, in substanc’e, that her defense is that she neither made or authorized the making of the notes sued upon ; that she never had their proceeds, or any benefit from them, as charged in the complaint; and that the plaintiff has been paid in real estate and money a large sum upon them. She thus has a clear idea of what her answer ought to contain. We need not consider whether she will, after answer, need an inspection in order to prepare for trial, since her motion is not based upon that ground.

The order is reversed, with $10 costs and disbursements, and the motion below is denied, with $10 costs.