N. Y. Supp. 122, affirmed 181 App. Div. 956, 168 N. Y. Supp. 1121. In the former case the plaintiff sought to restrain the city and the owner of the adjacent property from filling in the land under water out to the bulkhead line, claiming that to do so would constitute a violation of the restrictions as to 100 feet space between piers in the act of 1857. While the decision upholding the defendant might be considered as not strictly pertinent to the question here presented, as the act would seem to apply only to piers extending from the bulkhead line established by law, the court took occasion to pass upon the claim of the plaintiff to use the lateral waters in front of defendant's upland, and held it had no such right. In the case at bar the defendants frankly state that the possession of the easement claimed by it would enable defendant to impair plaintiff's use of its slip by having vessels of the defendant moored for a week to its pier. Nothing could be more convincing of the unsoundness of its claim than the statement so made. [4, 5] The conclusion is reached that the lease of 1881 was a valid lease to the extent that it demised the use of the defendants' bulkhead and pier, and as long as plaintiff remained in possession after the expiration of the term there was a renewal of the lease from year to year because of such holding over. Schuyler v. Smith, 51 N. Y. 309, 10 Am. Rep. 609; Kennedy v. City of New York, 196 N. Y. 19, 89 N. E. 360, 25 L. R. A. (N. S.) 847. Any defense the plaintiff may have can properly be set up in the pending actions brought by the defendants in the Municipal Court, and which the plaintiff seeks to restrain.

It follows that the complaint does not state a cause of action entitling plaintiff to the relief therein demanded, and should be dismissed. The defendants state in their brief that, if the complaint is dismissed, they are indifferent to the disposition of the counterclaims which may be the subject of a separate action, and we therefore have no occasion to pass upon their sufficiency.

Judgment reversed, with costs, and complaint dismissed, with costs. All concur.

(192 App. Div. 502)

PIERCE v. MORRIS.

(Supreme Court, Appellate Division, Fourth Department. May 12, 1920.) 1. Discovery 40-Order for examination of defendant properly extended to time, place, and circumstances of accident.

Where a 12 year old boy was injured by defendant's automobile, and there were no other witnesses to the accident, it was proper to provide, in an order made under Code Civ. Proc. § 873, for examination of defendant before trial, that defendant be fully examined as to the time, place, and circumstances of the accident.

2. Discovery 40-Order for examination of defendant held properly extended to defendant's connection with plaintiff's treatment.

Where a 12 year old boy was seriously injured by defendant's automobile, and plaintiff had no other witnesses to the accident, information being withheld by defendant's witnesses, an order for examination of defendant before trial under Code Civ. Proc. § 873, properly provided for inquiry as to defendant's connection with the treatment of the plaintiff For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(182 N.Y.S.)

following the accident, notwithstanding the moving papers failed to show that defendant was a physician, or that he examined or treated the boy at the time of the accident; it being conceded that defendant was a physician and that he did treat the boy professionally.

3. Discovery-41-Order for examination of defendant held improperly extended to duration of injuries.

An order for examination of defendant before trial, in an action for. injuries to a 12 year old boy caused by an automobile, extending the scope of the examination to the duration of the injuries, was improper; such question being one for expert opinion, which defendant should not be required to give, notwithstanding it was admitted that he was a physician.

4. Discovery

32-Order for examination before trial usually granted upon compliance with rules of practice.

Upon compliance with Code Civ. Proc. §§ 870, 871, and with General Rules of Practice, rule 82, an order for the examination of a party before trial is usually granted.

5. Appeal and error 961-When discretion of judge, granting order for examination before trial, will not be disturbed.

The discretion exercised by a judge granting an order for the examination of a party before trial will not ordinarily be interfered with, if it appears that the provisions of the statute have been substantially complied with, and if it fairly appears that there is an issue of fact to be determined, and that the adverse party has knowledge of facts which are material.

6. Discovery 33-Scope of examination is within judicial discretion.

In determining the scope of the examination of a party before trial, the judge granting the order exercises a judicial discretion, under section 873 of the Code of Civil Procedure.

7. Discovery 51-Moving papers must disclose necessity of general examination before trial.

To justify an order for a general examination of a party before trial, the moving papers must disclose its necessity.

8. Appeal and error ~961-Discretion in limiting scope of examination before trial not interfered with.

Under Code Civ. Proc. § 873, providing that the order for examination of a party before trial may, in the discretion of the judge, designate and limit the particular matters as to which the party shall be examined, the discretion of the judge will not ordinarily be interfered with, unless it appears that it has been abused.

9. Discovery 32-That complaint alleges necessary facts, or that answer contains general denial, immaterial.

An order for the examination of a party before trial may be granted, notwithstanding that the complaint alleges the facts necessary to be proved by plaintiff, or that the answer contains a general denial.

Appeal from Special Term, Cattaraugus County.

Action by Paul L. Pierce, an infant, by Dolley S. Pierce, his guardian ad litem, against Jacob E. K. Morris, to recover for personal injuries. From an order limiting the scope of an examination of defendant before trial, defendant appeals. Modified and affirmed.

Argued before KRUSE, P. J., and LAMBERT, DE ANGELIS, HUBBS, and CLARK, JJ.

Benjamin C. Ticknor, of Buffalo (George A. Larkin, of Olean, of counsel), for appellant.

P. S. Collins, of Olean, for respondent.

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HUBBS, J. The plaintiff, an infant 12 years of age, was seriously injured by being run down by an automobile owned by the defendant. An order was made, under section 873 of the Code of Civil Procedure to examine the defendant generally. Upon motion of the defendant, made upon the papers upon which the original order was granted, the Special Term limited the scope of the examination, and the defendant has appealed from said order, upon the ground that the court did not limit the scope of the examination sufficiently.

The order appealed from permitted the examination of the defendant upon the following questions:

(1) The ownership of the car.

(2) The management, control, and driver of the car at the time of the accident.

(3) The business in connection with which the car was being operated at the time.

(4) The time, place, and circumstances of the accident fully.

(5) The defendant's connection with the treatment of the plaintiff following the accident; the extent, particulars, and duration of the injuries.

The appellant concedes that the order was properly made to include an examination upon the matters set out in the first three paragraphs, but urges that it should be modified by striking out the last two paragraphs.

In determining the question, it is necessary that we keep in mind the unusual situation disclosed by the moving papers. The plaintiff was only 12 years of age. When injured, he was alone, and has no other witness to the accident. He was so seriously injured that he lay at the point of death for weeks, and was unable to find witnesses and investigate the facts in regard to the accident. The mother of the plaintiff, his guardian ad litem, states, in her affidavit, that the witnesses for the defendant have declined to give her the name of the person driving the car at the time; that the only statement of the conditions surrounding the accident she has been able to obtain is a statement by her little boy regarding it; that she has no other means of ascertaining the facts surrounding the accident than the examination of the defendant. The defendant has not denied any of the allegations contained in the moving papers.

[1, 2] Under the circumstances of this case, it was proper to provide in the order that the defendant be examined as to "the time, place, and circumstances of the accident fully." It is urged that the moving papers do not show that the defendant is a physician, or that he examined or treated the boy at the time of the accident. That is true; but it is conceded in the appellant's brief that the defendant is a physician, and that he treated the boy professionally following his injury.

[3] The moving papers show that there is no one else by whom the plaintiff can show his condition just after the accident, the position in which he lay, and the nature, extent, and particulars of his wounds and injuries at that time. The granting of the fifth paragraph of the order was fairly within the discretion of the Special Term,

(182 N.Y.S.)

except as to the last part thereof, which permitted an examination as to the duration of the injuries. No doubt that is a question for expert opinion, which the defendant should not be required to give. The fact that the moving papers do not state that the defendant is a physician, or that he treated the plaintiff at the time of the accident, does not prevent the granting of the part of the order in question, as the court had power to grant a general examination.

[4] Sections 870 to 886, inclusive, of the Code of Civil Procedure, provide the procedure governing examination before trial, and were intended to eliminate the pitfalls and technicalities which existed under the old practice upon that subject. An interesting and exhaustive history of the development of the law upon the subject is contained in an opinion of Justice De Angelis in the case of Akhurst v. National Starch Co., 64 Misc. Rep. 445, 119 N. Y. Supp. 561, affirmed 148 App. Div. 898, 132 N. Y. Supp. 1120. Upon compliance with the provisions of sections 870 and 871 of the Code of Civil Procedure and with rule 82 of the General Rules of Practice, an order for the examination of a party before trial is usually granted.

[5, 6] The discretion exercised by a judge who grants such an order will not ordinarily be interfered with, if it appears that the provisions of the statutes have been substantially complied with, and if it fairly appears that there is an issue of fact to be determined, and that the adverse party has knowledge of facts which are material. It should appear that the application for the order is made in good faith and for the purpose of the trial of the action. In determining the scope of an examination, the judge granting the order exercises a judicial discretion, under section 873. He may grant an order for a general. examination. The statute gives that authority. Herbage v. City of Utica, 109 N. Y. 81, 16 N. E. 62.

[7] Not every case justifies a general examination, however, and to justify such a broad order the moving papers must disclose its necessity. It was for that reason that section 873 gave the authority to limit the examination.

[8] In determining how restricted the examination should be, the courts have laid down certain rules, which are not absolute, but simply aids to assist the judge granting the order in determining that question. Section 873 expressly provides that "the order may, in the discretion of the judge, designate and limit the particular matters as to which he shall be examined." Ordinarily the discretion of the judge should not be interfered with, unless it appears that there has been an abuse of discretion.

[9] The fact that the complaint alleges the facts necessary to be proved by the plaintiff upon the trial, or that the answer contains a general denial, does not prevent the granting of the order. It is urged that the examination of the defendant is not "necessary," within the meaning of that word as used in section 871, because the allegations of the complaint disclose the fact that the plaintiff has the desired information. That contention is without force. Terry v. Ross Heater & Mfg. Co., 180 App. Div. at page 715, 167 N. Y. Supp. at page 748.

The order should be modified, by striking out the words "and duration of the injuries," and, as so modified, affirmed, with $10 costs and disbursements. All concur.

GRANOFF v. KORPUS et al.

(Supreme Court, Special Term for Trials, Kings County. November 28, 1919.)

1. Fraudulent conveyances 104 (2)-Conveyance to third party without consideration to defeat rights of purchaser is fraud.

A conveyance by vendor to his wife, without consideration, to defeat the rights of the purchaser, where the wife had full knowledge of the purchaser's contract, is fraudulent, and must be set aside.

2. Specific performance 10 (2)-If vendor's wife refuses to convey to defrauded purchaser, price will be abated by value of dower interest.

Where a wife had not joined in the contract, so that she cannot be compelled to join in the conveyance to purchaser, the vendor must give a deed, and the purchase price will be reduced, in the event of her refusal to join in the conveyance, by the reasonable value of her dower interest.

Action by one Granoff against one Korpus and another. Judgment directed for plaintiff.

Frank Krevoruck, of New York City, for plaintiff.

Harold L. Kunstler, of New York City, for defendants.

CROPSEY, J. [1, 2] The conveyance by the vendor to his wife was made in bad faith and for the sole purpose of preventing the plaintiff (vendee) from getting the title. There was no consideration, and the vendor's wife had full knowledge of plaintiff's contract and of his claims. That conveyance must be set aside. The plaintiff is entitled to all the relief that may be granted. The defendants have no defense and are guilty of fraud. As the vendor's wife did not sign the contract, it may be she cannot be compelled to execute a deed. But the vendor must give the deed he contracted to give, and if his wife joins in it the full purchase price must be paid, less the costs of this action, which are awarded to the plaintiff. If the vendor's wife refuses to join in the deed, the plaintiff shall have the option of taking the property subject to her inchoate dower right, and in that event an abatement from the purchase price will be made, which will represent the dower interest, or of introducing further proof on the question of damages, and the amount thereof will then become a lien on the property. This is the law of this jurisdiction (Maas v. Morgenthaler, 136 App. Div. 359, 120 N. Y. Supp. 1004; Farley v. Secor, 167 App. Div. 80, 84, 152 N. Y. Supp. 787), though the holdings in other states are conflicting (see note, L. R. A. 1917F, 599, 600). If the plaintiff elects to take the property subject to the dower interest, there must be a further hearing to determine the ages of the defendants, so the value of that interest may be fixed.

The findings have been passed upon and the decision signed. A judgment should be submitted, which will follow generally the terms

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