Bamberger v. United States Fidelity & Guaranty Co. , 75 N.Y.S. 1005 ( 1902 )

Gildebsleeve, J.

Plaintiff seeks inspection of a certain check, paid to plaintiff’s assignor, and of a release given by plaintiff’s assignor on the settlement of an action brought by plaintiff’s assignor on the same cause of action as that upon which plaintiff now seeks to recover. The defense to this action is based on the claim that defendant paid the assignor of plaintiff the full amount of the claim here sued upon, and obtained a release from him. Defendant’s evidence, in support of this defense, is, among other things, the check paid to plaintiff’s assignor, and indorsed by him, and the said release from said assignor to defendant. Plaintiff alleges that the said assignor, who is now dead, told her that he never received any payment of his claim, nor indorsed any check therefor, nor signed any release to the defendant. It is the claim of plaintiff that the indorsement on said check and the signature to said release are forgeries, committed by one Fromberg, who is now a fugitive from justice, and who was the attorney for the plaintiff’s assignor, and who discontinued the latter’s action, without his knowledge; and plaintiff believes that said Fromberg collected the money on the cheeky if any was paid, and appropriated the same to his own use. Plaintiff desires to inspect and photograph the check and release and indorsement on check, in order to be able to prove the forgeries at the trial. A copy of an affidavit, of which the original is stated to be on file in the office of the clerk of this court, is produced on this motion, made and verified by plaintiff’s assignor, on October 16,1900, in which the said assignor swears that he never received any money on this claim, and never signed any receipt therefor, nor any release of the claim, and that, if any person did receive said money and sign any release or indorse any check, given to collect said money, such acts were done without any authority from him. Defendant’s attorney states that the claim was settled and paid in full by two checks — one for $1,000, payable to order of plaintiff’s said assignor, Solomon Bamberger; the other for $16.50, payable to order of Guggenheimer, Untermyer & Marshall, and indorsed by them to A. M. Fromberg, attorney for said Solomon Bamberger. Both of these checks were delivered to said Fromberg, who thereupon surrendered the original bond, on which the suit was brought by said Solomon Bamberger, and at the same time delivered to defendant’s attorneys a general release purporting to be executed by said Solomon Bamberger and duly acknowledged before a notary, and also a consent to discontinue the action. These checks were duly honored at the bank and paid. This release and the $1,000 check, payable to said Solomon Bamberger, and purporting to have been indorsed by him, form, as I have said, the basis of the defense, and will, the defendant’s attorney declares, be certainly produced at the trial, when plaintiff can examine them. It would seem, however, that, inasmuch as it will be essential for plaintiff to prove the allegation of forgery, an inspection of the alleged forged signatures would be necessary to enable her to prepare for the trial. - On the other hand, it does not appear that any undue hardship can come to defendant from such inspection. It is true that plaintiff should have made this application before now; but, under the circumstances, I am disinclined to hold that her laches are such as to defeat her right to the inspection. Motion granted, with ten dollars costs to abide the event.

Motion granted, with ten dollars costs to abide event.