Bender v. Bork , 102 N.Y.S. 152 ( 1907 )

Wheeler, J.

The counsel for Mr. Shire contends that the order for his examination was improvidently granted and should he vacated, on the ground that tbe moving papers made out no case warranting the order for examination.

Counsel for Mr. Shire also read an affidavit to the effect that Mr. Shire will be personally present at the trial to testify on his own behalf.

The cases are quite uniform in holding that the fact that a witness, or a party, will attend the trial of an action is no answer to the application for an examination of such person under the provisions of sections 870, 872, 873. Goldmark v. U. S. Electro Galvanizing Co., 111 App. Div. 526; Press Pub. Co. v. Star Co., 33 id. 242; Presby v. Public Opinion Co., 6 id. 600; Magnolia Metal Co. v. Sugden, 57 id. 574; Tanenbaum v. Lippmann, 89 id. 21.

We are then to inquire into the facts disclosed by the plaintiff’s papers to see whether a proper case is presented for the granting of the order; for, although the provisions of the Code appear mandatory in their terms, nevertheless, it is well established that the judge is not necessarily compelled to grant the order as a matter of strict right, but, where it appears the application is made for purposes of annoyance or delay, should deny same. Jenkins v. Putnam, 106 N. Y. 272.

Although the language of the section is apparently mandatory, the granting or refusal to grant such an order is in a degree a matter of discretion. Matter of Davies, 168 N. Y. 102. Notwithstanding this, it appears to have been the practice of the courts to regard the privilege to examine an opposing party as a substantial right, when free from abuse of that right; and this is particularly true when it is made to appear that the facts sought to be established are within the personal knowledge of the defendant and it is necessary to prove them to make out the plaintiff's case. Commercial Pub. Co. v. Beckwith, 57 App. Div. 574; Tanenbaum v. Lippmann, 89 id. 21; Presbey v. Public Opinion Co., 6 id. 600.

In Goldmark v. U. S. Electro-Galvanizing Co., 111 App. Div. 526, the court says: “Where there is no doubt of the good faith of a party to a litigation seeking to establish a fact essential to his cause of action by the testimony of his opponent, I can see no reason why a party is not entitled to have the knowledge of his opponent as to the fact which he wishes to establish put upon record so that the evidence of that fact would be available to either party to the action when the trial takes place. It is not the dxity of a court of justice to suppress the facts or throw obstacles in the way of either party establishing the truth, and where a party to an action has presented to a justice of the Supreme Court an affidavit complying with section 872 of the Code and the facts and circumstances are stated which show that the testimony of the person whose deposition is proposed to be taken is material and necessary for the party making the application for the prosecution or defense of the action, there is no reason why the examination should not be allowed.”

The plaintiff seems to have brought himself within the provisions of the sections of the Code in question and of the decided cases; The action is for the specific performance of a contract for the sale of certain real estate. The sale was made subject to the approval of Mr. Shire, and the complaint alleges such an approval on Mr. Shirks part. The answers deny that fact. Whether he approved or not is peculiarly within the knowledge of Mr. Shire; and the plaintiff, in our opinion, has the right to establish that fact if he can by Mr. Shire’s testimony, and may do this by an examination before trial, and is not required to wait until trial before putting him on the witness stand.

The motion to vacate order is denied, with ten dollars costs.

Motion denied, with ten dollars coste.