Citation Numbers: 172 Misc. 637
Judges: Frankenthaler
Filed Date: 3/3/1939
Status: Precedential
Modified Date: 1/12/2023
To the extent that this motion seeks to compel the filing of certain amendatory resolutions and “ transactions,” it is denied. The fifing of the original resolutions was voluntary on the part of respondent, and was not required by law or otherwise.
There remains for consideration petitioner’s application for an examination before trial. In so far as the examination is sought in aid of the relief asked for in the petition in connection with certificated issues other than those for which petitioner is trustee, the examination is neither material nor necessary, since petitioner may not bring a representative proceeding on behalf of the trustees of other issues. (See Brenner v. Title Guarantee & Trust Co., 276 N. Y. 230; Marsh v. Kaye, 168 id. 196; Bouton v. Van Buren, 229 id. 17.) The claim, if any, possessed by the trustee of any issue is separate and distinct from similar claims belonging to the trustees of other issues.
Nor is the examination material and necessary for the purpose of establishing petitioner’s claim for a reduction in his own issue, since respondent concedes that petitioner is entitled to such reduction. There are, it is true, differences between petitioner and respondent in regard to the mathematical correctness of respondent’s computations and also as to the proper amount of certain charges with which respondent credits itself for items unrelated to the reduction sought by petitioner. The proposed examination, however, does not relate to these differences but rather to petitioner’s right to a reduction in the reorganization administration charge, which respondent offers to allow.
It follows that the examination applied for is neither material nor necessary. Under the circumstances there is no occasion for determining the question of law raised by respondent as to whether it may lawfully be examined before trial in any case.
The motion is denied.
(Reargument, May 11, 1939.)
The examination before trial was sought in aid of the pending application of petitioner for an order “ directing the Mortgage Commission of the State of New York to forthwith pay over a sum sufficient to reduce the administrative reorganization charge deducted by the Commission on the closing of title in this issue by 11.5% together with interest from the date of closing of title.” (Petitioner’s Notice of Motion, dated Oct. 25, 1938.) The said application did not seek relief in respect of .the servicing rates adopted by the Mortgage Commission in the case of petitioner’s issue but was restricted solely to the proper amount of the reorganization charge. This was pointed out in the answering affidavit of