Blum v. Rosenbaum

Lehman, J. I do not think that the order appealed from is in any way in conflict with the principles laid down in the opinion in the case of Kornbluth v. Isaac, 149 App. Div. 108. In that case the plaintiffs had brought an action for fraud which the defendants denied under oath; yet in spite of this denial under oath, and the presumption that the defendants would not testify in court in contradiction of their denial under oath, I denied the motion to vacate an order for the examination of the defendants before trial. In my opinion in that case I attempted to review the earlier decisions of the various appellate courts and there stated: “A review of these decisions, however, discloses that the courts still regard the right of examination of an adverse party before trial as a substantial right which should not be denied if it is made in good faith and for the purpose of obtaining testimony, though it should be denied if the order is sought for some ulterior purpose.” It would, therefore, appear that where a party has complied with all the requirements of the Code in moving for such an order the order should not be vacated if the court can reasonably hold that the application was made in good faith. In the case before us the plaintiff has pleaded a contract for the sale of certain tubing and makes the [294] written contract a part of the complaint. The defendant admits that he entered into this written agreement but claims that it was only a part of a larger contract containing a warranty going beyond that set forth in the complaint; that the goods delivered did not comply with the warranty and that he offered to return them after a reasonable time for inspection. It would appear therefore that the plaintiff can make, out a prima facie case by merely showing that he delivered the goods in accordance with the written memorandum or contract. The burden then rests upon the defendant of producing evidence to show that the written instrument is not the whole contract; that the goods delivered were not in accordance with the larger contract and that he tendered them back. Not one of these matters need be shown upon plaintiff’s affirmative case. The question then arises as to how the defendant will prove these matters. He has knowledge of these matters but he need not prove them by his own testimony, which is, after all, interested testimony, but he must be permitted to obtain other testimony if such testimony is in existence. He shows by his affidavit that plaintiff also has personal knowledge of the transaction, and we can certainly not presume that the plaintiff will testify falsely if put upon the stand. The defendant, therefore, if his allegations are true, has a right to presume that the plaintiff will consequently give testimony which will prove some or all of the matters which defendant must show. It is possible that the plaintiff may disappoint the defendant upon such examination; it is possible that some of his testimony may be distinctly adverse to the defendant, but it is precisely on account of these contingencies that the provisions for an examination before trial have been inserted in the Code, so that a party may find out before trial whether he can rely on an adverse party [295] giving the expected testimony without making him his own witness at the trial. The cases where such examinations before trial have been vacated are all cases where the party to be examined must, in order to sustain his case, present evidence to the contrary of the matters expected to be proven by the examination or some other facts show that the examination is only for cross-examination. If we vacate this order of examination confined as it is to matters upon which the defendant has at least the burden of producing evidence, then I think that no order can ever be granted where the party seeking the examination swears to the facts on personal knowledge. Order should be affirmed, with ten dollars costs and disbursements.