Insurance Press v. Montauk Fire Detecting Wire Co. , 74 N.Y.S. 1093 ( 1902 )

Laughlin, J. (dissenting):

I think the affidavits were clearly insufficient to require the granting of the order, and that the motion was properly denied. What is the assigned object of the proposed examination ? Not to obtain ■ evidence of a fact, but merely the opinion of the defendant Gould as to the value of the patents, which are a device for the discovery of fire. The patents have been purchased by the company of which plaintiff is a stockholder, and presumably they are in its possession and open to examination by the plaintiff, or any experts whose opinion he may desire concerning their value, at any time. It does not appear, nor is it alleged, that the defendant Gould possesses any special knowledge concerning them riot readily obtainable by others. It is not claimed that he has made any admission as to their value conflicting with the price charged on the sale to the company. It is alleged that this examination is material and necessary for the plaintiff' in the prosecution of the actiori, but it is not alleged either in substance or effect that the plaintiff intends to use the. evidence upon the trial. This is not a case where we may dispense with formal allegations of intention to use the testimony ■upon the trial, upori the ground that such is the. reasonable inference :to be drawn from all the facts arid circumstances disclosed. Here ■the inference is plain that the plaintiff does not intend to use this ■evidence upon the trial. . His object is to" ascertain how the defendant Gould thinks these patents can be utilized to produce a return which will justify the valuation at which they were turned over to the company. That is Gould’s defense, if he has any, and is something the plaintiff is not entitled to know in advance.

Van Bbunt, P. J., concurred.

Order affirmed, with ten dollars costs and disbursements.