Premo v. Smith — 32 N.Y. Super. Ct. 467

Majority

p. 467

JOHN PREMO, Plaintiff and Appellant, v. PHILIP SMITH, Defendant and Respondent.

[Decided June 4, 1870.]

Headnote

Upon proof that the plaintiff fraudulently made away with the specifications of a building contract, defining the rights of the parties to the action, and material to the determination of such rights, the court has power to stay plaintiff’s procee dings and extend defendant’s time to answer until after service by plaintiff of one of said specifications upon defendant or his attorney.

Before Barbour, C.J., Freedman and Spencer, JJ.

Mr. John E. Parsons for appellant.

Mr. James W. Culver for respondent.

By the Court:

This is an appeal from an order staying plaintiff’s proceedings. Upon the hearing of the motion below the defendant showed by affidavit, and the records of the Court of Common Pleas for the city and county of Hew York, that the plaintiff had wilfully and fraudulently either destroyed or withheld from the defendant the original specifications of a written building contract, which defined the rights of the parties to the action, and were material for the determination of such rights. The plaintiff read no papers in opposition to the motion, and the court thereupon granted an order staying all proceedings on the part of the plaintiff in the action, until he shall produce and deliver to the attorney for the defendant one of the said original specifications, and giving to the defendant twenty days after such service to answer the complaint or take such other proceedings in the action as he shall be advised.

Upon an examination of the facts it clearly appears that the court below had not only the power to make the order appealed from, but that the order, as made, was a proper one under the circumstances.

The order should be affirmed, with costs.