particulars, sets forth no cause of action, and the defendant was entitled to judgment on the pleadings. The court below, however, should have granted the appellant the right to amend the complaint. In this respect the order appealed from is modified, and, as so modified, the order is affirmed, without costs. Disbursements of the appeal to the appellant. All concur. BANNISTER v. MURRAY. (Supreme Court, Appellate Term, First Department. March 18, 1915.) 1. DISCOVERY 32-EXAMINATION OF PARTY BEFORE TRIAL-GROUNDS FOR DENIAL. That the answer is a general denial does not preclude plaintiff from his right to examine defendant before trial, on the theory that, having denied the allegations of the complaint, it is inconceivable that defendant will testify otherwise upon examination. [Ed. Note. For other cases, see Discovery, Cent. Dig. § 46; Dec. Dig. ~32.] 2. DISCOVERY 53-EXAMINATION OF PARTY BEFORE TRIAL-GROUNDS FOR DENIAL. Under Code Civ. Proc. § 870, providing that the deposition of a party to an action may be taken at his own instance, or at the instance of an adverse party, "at any time before or during the trial," plaintiff did not lose her right to examine defendant before trial by placing the cause on the short-cause calendar before making the application to examine defendant. [Ed. Note. For other cases, see Discovery, Cent. Dig. § 66; Dec. Dig. 53.] 3. DISCOVERY 36-EXAMINATION OF PARTY BEFORE TRIAL-GROUNDS FOR DENIAL. In an action on an alleged contract whereby plaintiff was employed as housekeeper for defendant, defendant's examination before trial on plaintiff's application could not be denied, on the ground that the peculiar character of the contract and the atmosphere created by the litigation indicated that the examination was desired, not for use upon the trial, but for the purpose of preparing for trial, or for some ulterior or improper purpose, since a party is entitled as a matter of right to the examinàtion of an adverse party concerning material issues and in support of the case of the moving party. [Ed. Note. For other cases, see Discovery, Cent. Dig. § 49; Dec. Dig. 36.] Appeal from City Court of New York, Special Term. Action by Corrine Louise Bannister against George G. Murray. From an order vacating an order for the examination of defendant before trial, plaintiff appeals. Reversed, and motion to vacate denied. Argued March term, 1915, before LEHMAN, HENDRICK, and COHALAN, JJ. Randolph M. Newman, of New York City (Leonard Klein, of New York City, of counsel), for appellant. Dutton & Kilsheimer, of New York City (Maurice Meyer and Jas. B. Kilsheimer, both of New York City, of counsel), for respondent. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes HENDRICK, J. The action is to recover $1,050, the alleged balance due upon a contract for the personal services of plaintiff as housekeeper for defendant. The complaint alleges a contract wherein defendant promised to pay plaintiff $500 a month, if plaintiff would take care of and keep in order, for defendant's benefit, defendant's apartment, from which sum plaintiff was to pay the rent and all expenses of the household. It is further alleged that defendant entered into the performance of the contract, that defendant made the stipulated payments up to June 1, 1914, and that plaintiff performed her part of the contract up to October 1, 1914, for which period of four months defendant paid her on account $950, leaving due $1,050, for which this action is brought. The answer is a general denial. The court, in granting the motion to vacate the order for defendant's examination before trial, bases its action on two grounds: First, that the plaintiff, prior to the motion to examine defendant, had moved to place the cause on the short-cause calendar, and that she did not then claim that it was necessary to have the testimony of defendant for use upon the trial; and, secondly, that, the defendant having denied the allegations of the complaint, it is inconceivable that he will testify otherwise upon the examination. [1] The fact that the answer is a general denial does not preclude the plaintiff from his right to examine the defendant before trial. This rule is so well settled as to need no argument. Blum v. Rosenbaum, 87 Misc. Rep. 292, 149 N. Y. Supp. 960; Heine v. Weller, 82 Misc. Rep. 402, 143 N. Y. Supp. 752; Straus v. Peck (Sup.) 126 N. Y. Supp. 628, and cases therein cited; Kornbluth v. Isaacs, 149 App. Div. 108, 133 N. Y. Supp. 737, etc. [2] The fact that plaintiff sought to place the cause on the shortcause calendar before making the application to examine defendant is immaterial. The Code of Civil Procedure (section 870) provides that the examination may be taken "at any time, before or during the trial." [3] The learned court, in its opinion, suggests that the peculiar character of the contract and the atmosphere created by this litigation indicates that the plaintiff desires the examination, not for use upon the trial, but for the purpose of preparing for the trial, or for some ulterior and improper purpose. It may be that the trial will develop such a contract or such a relationship between the parties as would preclude the plaintiff from recovering the judgment. But we cannot assume that such will be the case. Certainly there is nothing in the papers used upon the motion that establishes it. It seems that the plaintiff is within the rule that a party is entitled, as a matter of right, to the examination of an adverse party concerning material issues and in support of the case of the moving party. Caldwell v. Glazier, 128 App. Div. 315-317, 112 N. Y. Supp. 655; Lawson v. Hotchkiss, 140 App. Div. 297, 125 N. Y. Supp. 261; Bioren v. Campbell, 140 App. Div. 523, 125 N. Y. Supp. 392. The order appealed from should be reversed, with $10 costs and disbursements, and motion denied, with $10 costs. All concur. 152 N.Y.S.-13 HERZFELD et al. v. ROBINSON et al. (Supreme Court, Appellate Term, First Department. March 18, 1915.) SALES 365-ACTION FOR PRICE-VERDICT-CONFORMITY TO ISSUES. In an action to recover on defendants' alleged promise to pay $200 for machinery installed on certain premises, in which defendants alleged that the promise was to pay only such sum as should be realized on a sale of the property over and above the sum of $400, and that less than $400 had been realized, a verdict of $100 was inconsistent with either claim, and could not stand. [Ed. Note. For other cases, see Sales, Cent. Dig. § 1077; Dec. Dig. 365.] Appeal from Municipal Court, Borough of Manhattan, First District. Action by Leo Herzfeld and another against Abraham Robinson and another. From a judgment for plaintiffs, defendants appeal. Reversed, and new trial ordered. Argued February term, 1915, before GUY, PENDLETON, and SHEARN, JJ. Irving Rosenberg, of New York City, for appellants. PENDLETON, J. The action was brought to recover $200 on defendants' alleged promise, among other things, to pay that amount for the purchase of certain machinery installed on certain premises. Defendants denied the promise to pay $200, and claimed the promise was to pay such sum as should be realized on a sale of property over and above a sum of $400, due defendants from plaintiffs, and alleged that, in fact, less than $400 had been realized on the sale. The verdict of $100 is inconsistent with either claim, and cannot be reconciled to any view of the evidence. Plaintiff was entitled to recover the full amount of $200, or nothing, and the verdict should have been set aside. Judgment and order reversed, and new trial ordered, with costs to appellant to abide the event. All concur. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (89 Misc. Rep. 458) GOLDSMITH v. LEVINE et al. (Supreme Court, Appellate Term, First Department. March 18, 1915.) DISCOVERY 41-EXAMINATION BEFORE TRIAL-SCOPE OF ORDER. Where plaintiff's first cause of action was for commissions earned up to the date of her discharge, and the second for damages for breach of the contract, an order directing the defendants to furnish plaintiff with information, and to testify, regarding all the customers and sales made by defendants in their place of business from a certain date until the expiration of the agreement as claimed by plaintiff, was too broad, in not being at least limited to sales procured by the plaintiff, or new orders received by defendants after plaintiff's discharge, on which plaintiff would have been entitled to commissions, had the employment continued. [Ed. Note. For other cases, see Discovery, Cent. Dig. § 54; Dec. Dig. 41.] Appeal from City Court of New York, Special Term. Action by Harriet Goldsmith against Jacob H. Levine and another. From an order requiring defendants to furnish plaintiff with information regarding customers and sales, defendants appeal. Reversed. Argued March term, 1915, before LEHMAN, HENDRICK, and COHALAN, JJ. Boudin & Liebman, of New York City (Louis B. Boudin, of New York City, of counsel), for appellants. Bogart & Bogart, of New York City (John Bogart, of New York City, of counsel), for respondent. HENDRICK, J. The court below directed the defendants "to furnish certain information to plaintiff and to testify regarding all the customers and sales made by the defendants in their place of business from April 20th, until the expiration of the agreement as claimed by the plaintiff, the amount of said sales, and in addition thereto all payments made by the defendants to the plaintiff during the time that she was employed by them as alleged in plaintiff's complaint." The complaint contains two causes of action, one for commissions on goods sold by plaintiff up to September 14, 1914, the other for breach of the contract. The contract by its terms expired January 1, 1915. The answer is a general denial. Plaintiff obtained ex parte, from a justice in the court below, an order for the examination of defendants before trial, which required the defendants to "submit to an examination and testify concerning the matters set forth in the annexed affidavits and relevant to the issues"; the affidavits referred to being those on which the order was granted. In those affidavits the plaintiff sought to examine defendants to prove pursuant to the terms of the agreement, that the defendants obtained orders for merchandise by or through the efforts of plaintiff, and the amount of such orders during the period fixed by the contract. In obedience to this order one of the defendants was examined, and it is conceded that he furnished all lists and testified concerning the sales made by defendants, through the procurement of plaintiff, from For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes the time of her employment until the day of her discharge, September 14, 1914; the commissions on such sales being the basis of the first cause of action. The plaintiff demanded that defendants testify to all sales made by them in their place of business from the time of the discharge September 14, 1914, to January 1, 1915, when the agreement expired by its terms. The defendants refused, claiming that they were not required so to do by the order of the court. Thereupon plaintiff applied to another justice of the City Court for the order appealed from. The application was based upon the affidavit of Mr. Bogart, attorney for the plaintiff, and the order first granted in the court below. Mr. Bogart's affidavit states no facts which would entitle plaintiff to any further examination than that directed by the first order of the court; but the order appealed from enlarges the scope of that order, and directs the defendants to furnish plaintiff and to testify "regarding all the customers and sales made by defendants in their place of business from April 20th until the expiration of the agreement as claimed by the plaintiff, the amount of sales," etc. In any view this order is too broad. It is not even limited to sales procured by plaintiff, nor to new orders received by defendants after plaintiff's discharge, which were renewal orders on which, if the employment had continued, the plaintiff would have been entitled to commissions. As we view the complaint, although the second cause of action is very obscurely stated, the first cause of action is for commissions earned up to the date of the discharge, September 14, 1914, and the second for damages for the breach of the contract. The latter cause of action could be sustained only by proof of what plaintiff would have earned if she had remained in defendants' employ from September 14, 1914, to January 1, 1915, and no examination of defendants' books would aid her in making that proof. We do not think that, upon the papers upon which the application was made, resulting in the order appealed from, the justice making such order had the power to enlarge the order first made. If the plaintiff thought that, by refusing to answer as to sales made by them after plaintiff's discharge, the defendants were disobeying the original order, she should have applied to the justice making such order to punish them for contempt, or to modify or enlarge the order granted by him. Order reversed, with $10 costs and disbursements, and motion denied, with $10 costs. All concur. |