Hartog & Beinhauer Candy Co. v. Richmond Cedar Works

Clarke, J.: Appeal from an order of the Special Term .denying a motion to vacate an order obtained by the defendant for examination of the plaintiff, a corporation, and certain officers thereof before trial and after issue joined. The action is for damages for breach of contract. The plaintiff alleges in its complaint that the defendant failed to supply it with certain cedar pails needed for use in its candy business; that because of defendant’s failure to deliver these pails [628] plaintiff was unable to perform pertain agreements for the sale and delivery of candies; that plaintiff lost certain customers thereby; that it was obliged to deliver-some of its product in tin pails, pay- ■ ing therefor a price in excess of the amount at which defendant promised to deliver cedar pails. There were other allegations of damage. The plaintiff lias furnished a bill of particulars. A case is presented .where a bill of particulars is proper and if the bill furnished is not sufficient a motion for a further bill might be made. ■ The examination which the defendant desires, as appears by- the affidavit submitted upou its application, is for the purpose of obtaining the items and the details which go to make.up the damages claimed by the plaintiff. It is, therefore, an attempt to obtain information before the trial of necessary parts of the plaintiff’s case which the plaintiff must establish by proof in order to succeed. There is nothing asked for which is material and necessary to the defense interposed. It is even averred in the affidavit “ That in the opinion of deponent it is necessary and material that the annexed order, in order that -the facts in reference to plaintiff’s alleged cause of action * * * may be properly presented to this court •* * * should be granted.” The Code provides that the examination of an adverse party may be obtained when the testimony .of such person is material and necessary for the party making such application for the prosecution or defense of such action. (Code Civ. Proc. § 872.) This court said in Dudley v. New York Filter Manufacturing Co. (80 App. Div. 164): “The rule, however, with reference to allowing the examination of a party is quite different. Such examinations are never allowed where the object is to obtain information concerning an adversary’s case or defense; nor are they allowed merely for' the purpose of enabling a party to prepare for trial. * * * They are only allowed where the object.is to obtain evidence essential to the moving party’s case or defense, and when it fairly appears that it is the intention of the party to rise the examination upon the trial. * * * Where it appears that the testimony is material and is necessary to enable the applicant to establish his own case or defense, it is no objection to the examination that it may disclose his adversary’s case.” This proposition. was cited with approval in McKenna v. Tully (109 App. Div. 598). [629] In Oakes v. Star Company (119 App. Div. 358) we said: “ Ifc is still necessary to show, by the recitation of appropriate facts and circumstances, that the testimony sought to be elicited is material and necessary for the party making the application (Code Civ. Proc. § 872, subd. I; Gen. Rules Pr. rule 82), and it is incumbent upon the party seeking the examination to make this fact appear; ” which proposition was reasserted in Wood v. Hoffman Co. (121 App. Div. 636). As it is no part of the defendant’s case to establish the items of the plaintiff’s damage, the order providing for the examination- of the plaintiff through its officers for the purposes here disclosed was not authorized. The order appealed from should, therefore, be reversed, with ten dollars costs and disbursements, and the original order granting the examination vacated and set aside, with ten dollars costs to the appellant. Patterson, P. J., McLaughlin and Scott, JJ., concurred; Ingraham, J., dissented.