Swift v. Mayer

Headnote

§§ 870-871-872 Code Civil Procedure, order construed as being made under, ffidavitfor, insufficiency of.

Appeal from an order vacating an order for the examination of the defendants before trial.

The action is brought to set aside certain conveyances made in 1882, as fraudulent as to creditors. The affidavit on which (together with the pleadings, consisting of the complaint and answer,) the order for an examination was made, set forth as facts making the examination material and necessary as follows :

“ The said parties not only have especial knowledge as to the whereabouts and condition of any property belonging to the defendants Ferdinand Mayer and Benjamin Mayer, but they and said Benjamin Mayer have substantially the only knowledge on the sub

ject, and I verily believe that their examination will disclose the existence of such property. The plaintiffs seek to establish by this suit that certain real estate was conveyed to the defendant Regina or Rachel Mayer, with the intent to hinder, delay and defraud these nlaintiffs as creditors of Ferdinand Mayer and Benjamin Mayer, and that said Ferdinand Mayer and Benjamin Mayer, or one of them, paid the consideration for such transfer ; from the very nature of the case, the defendants are peculiarly able to give the facts in regard to this transfer, facts which the plaintiffs must be able to prove in order to safely proceed to the trial of this action, and of which they are themselves ignorant. I verily believe that such examination will elicit testimony which will prove the allegations of the complaint, and it is the purpose of the plaintiffs to use such testimony on the trial of this action.”

The order ordered that the defendants Ferdinand and Regina or Rachel Mayer be examined as adverse parties and their depositions taken, and that for that purpose they appear, etc., and submit to examination under oath concerning all matters relevant to the issues in the action.

The judge at special term on vacating the order wrote :

“ Truax, J.—The order which the defendant moves to vacate is for a deposition to be taken as prescribed in article 1, title 3, of chap. 9, of the Code of Civil Procedure; it is not an order directing persons to appear and be examined under oath concerning matters pertaining to a discovery. The papers upon which the order was granted and the order itself shows this. The plaintiff is, therefore, wrong in contending that the papers upon which the order was granted need not conform to rule 83. The affidavit upon which the order was granted specifies

no facts and circumstances which show that the examination desired is material and necessary; for though it be conceded that the persons sought to be examined “ have especial knowledge as to the whereabouts and condition of any property belonging to the defendants, Ferdinand Mayer and Benjamin Mayer, and they and the said Benjamin Mayer have substantially the only knowledge on the subject,” I cannot see how evidence as to the whereabouts and condition of any property belonging to the defendants, Ferdinand and Benjamin Mayer, will be material and necessary to the plaintiff in the trial of this action, for the affidavit is made in May, 1889, while the action is brought to have a conveyance made in 1882 declared to have been made in fraud, etc., of creditors. Although the facts and circumstances need be but slight to warrant an examination in a case such as this, those presented by the affidavit do not suffice. The papers raise a suspicion that the order is desired merely for inquisitorial purposes. The motion to vacate the order is, therefore, granted, with $10 costs.”