McKenna v. Tully

Clarke, J.: Appeal from an order providing for examination before trial, pursuant to section 873 of the Code of Civil Procedure. The appellants urge as a reason why this order should be reversed that the examination is sought merely for the purpose of prying into the defense, and, therefore, ought to be prohibited. They allege that this is an action for the specific performance of a contract for the sale of land, and that all that plaintiff would be required to do would be to prove the contract, his performance and the breach; that the defendants then assumed the burden of showing that the transfers of which he complains were made without notice, in good faith, and for a valuable consideration (Seymour v. McKinstry, 106 N. Y. 242).; that, being matters of defense, an examination will not be allowed “ where the object is to obtain information concerning an adversary’s case or defense * * *. They are only allowed where the object is to obtain evidence essential to the moving party’s case or defense.” (Dudley v. N.Y. 7. Filter Mfg. Co., 80 App. Div. 166.) Those propositions correctly state the law, but are misapplied to the facts in this case. All of the parties sought to be examined are defendants in the action, which is in equity. The complaint sets up a conspiracy whereby the defendant Tully, with the knowledge of the other defendants, has transferred the title to the property sought to be obtained and has so incumbered it with mortgages that plaintiff cannot have the relief sought without setting aside said several instruments. He demands inter alia that the defendant Simpson be adjudged to be a trustee for this plaintiff, and that as such he holds the title to the lands and premises affected by this action ; that he be directed to convey; that he, as well as Michael Tully and James F. Tully, be directed to account for the rents and profits, and that an injunction issue restraining said defendants from ¡receiving the rents and profits, and that a receiver be appointed. In order to establish the cause of action set up and to obtain the relief demanded, it, therefore, becomes necessary for the plaintiff to affirmatively establish the facts in regard to the various transactions respecting which he desires an examination. Therefore, he [600] comes directly within the rule, as the testimony is sought to uphold, his cause of action,'and not to'.destroy á defense.- ■ The order is proper and should he affirmed* with ten dollars costs and disbursements. ' Q’Brien, P. J., Patterson, Ingraham and Houghton, JJ\, concurred, . Order affirmed, with ten dollars costs and disbursements. .'