Chaskel v. Metropolitan Elevated Railway Co. , 2 Silv. Sup. 36 ( 1889 )

Van Brunt, P. J.

The order appealed from is clearly right, under the rules laid down governing the examination of parties before trial contained in the case of Jenkins v. Putnam, 106 N. Y. 272, 12 N. E. Rep. 613. In that case it is distinctly held that certain facts must be made to appear to the judge before such an examination should be allowed, among which is the fact that the plaintiff has reason to apprehend that he cannot have the examination of the party at the trial, or that it is important for him to have the testimony of the party to be examined before trial, neither of which allegations appear in the affidavit upon which the application in this case was founded. There seems to be no reason whatever, why the examination should be allowed. It appears from the plaintiff’s brief that the claim is that a director of a corporation is primarily, liable for the acts working a tort by the corporation, and, if lie is correct in that respect, then he needs no examination of any of the defendants in that regard, showing their assent to the acts done by the corporation. As to the claim of proving whether the defendant Field was a director or not, the primary source for the proving of such facts is the minutes of the corporation; and, until it appears that there are no minutes, the parties should be relegated to that source of information, rather than harassing a defendant unnecessarily by an order for his examination. . The order should be affirmed, with $10 costs and disbursements. All concur.