Malcom v. Gibson , 104 N.Y.S. 753 ( 1907 )

Lambert, J.:

The action was commenced by the service of a summons on the 1st day of February, 1907. On the ninth day of that month, upon the affidavit of the plaintiff, Mr. Justice Greenbaum made an order requiring the defendants Burton W. Gibson, MacFarland, Whitin, Macintosh, Pearsall and Dyer to appear before a referee for the purpose of taking their examination. This order in form used the language of section 873 of the Code of Civil Proeed•ure. The defendants, other than Macintosh, who .was not served, moved to vacate the order and this motion was denied. The defendants, other than Gibson, have appealed from this order, which, having been argued before this court, has been affirmed at the present term.^* Upon the settlement of the order of denial the defendant Gibson submitted a proposed order, in which he asked, among other things, that the.order be modified by expressing in terms that the examination was under the provisions of sections 870 to 886 of the Code of Civil Procedure. This proposition was rejected, the learned justice following in his order the language of the original order. With matters in this condition Mr. Gibson procured an order to show cause returnable at Special Term, asking for a modification of the order in the same particulars. The learned Special Term not only modified the order in the particular suggested by Mr. Gibson, but limited the scope of the examination to such an extent that the plaintiff urges, and not without reason, that it will defeat the very object for which the order was sought. The'facts set forth in the moving papers are such as to warrant a very thorough examination. Mr. Gibson is a member of- the bar and insists that he is willing to afford anyt proper information, and if this is the case there need be no practical difficulty in dealing with the questions under the original order. The transaction primarily rests upon the relations between Mr.. Gibson, an attorney, and Louisa M. Stenton, now. an incompetent, while the former was acting for the latter, and the affidavit on which the original order was granted alleges that the entire transactions involving all of the defendants are involved in the fraudulent scheme. The case seems to be one where a very thorough examination is proper for the purpose of enabling the plaintiff to bring out the true state of affairs, and we are of opinion that the learned court at Special Term erred in granting more of an amendment or modification of the order than was asked by Mr. Gibson. The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion to modify should be denied, with ten dollars' costs, leaving the original order to stand as made. It follows that the order denying -the- motion, to vacate the original order, made by the defendants other than Gibson, should! be affirmed, with ten dollars costs and disbursements. Patterson, P„ J., Ingraham, McLaughlin and Clarke, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. '

* See Malcom v. Gibson, No. 2 (post, p. 890).— [Rep.