Linnekin v. Linnekin

Cropsey, J. Motion to vacate an order obtained by plaintiff for the examination of defendant before trial. The action is for a separation. The order required the defendant to be examined as to his property. No defects in the papers upon which the order was made arc claimed. This motion is based solely upon the contention that in.no separation action can a defendant be examined before trial as to his means. Were this a case of first impressions there would seem to be no force in defendant’s contention. The courts have very generally sustained the right to examine before trial adverse parties as to any fact material to the cause of action. Goldmark v. United States Electro Galvanizing Co., 111 App. Div. 526; McKeand v. Loche, 115 id. 174; Shonts v. Thomas, 116 id. 854; Richards v. Whiting, 127 id. 208; Cherbuliez v. Parsons, 123 id. 814. These cases and others hold that no longer shall technicalities and exaggerated reasons ’ ’ be grounds for refusing to grant orders for such examinations. Such examinations are valuable aids in the ascertainment of the truth,” and should be allowed when the papers bring the applications within the provisions of the law. Section 873 of the Code of [58] Civil Procedure says the order “ must ” be granted in such a case. There is nothing in the statutes or rules that even indicates much less provides that a different rule is applicable in separation actions. The language of the sections is general. The examination may be had ‘ ‘ in an action pending in a court of record. ’ ’ Code Civ. Pro. § 870. That these provisions applied to separation actions would seem to be clear were it not for some decisions which have held to the contrary. Van Valkenburgh v. Van Valkenburgh, 149 App. Div. 482; Danziger v. Danziger, 68 Misc. Rep. 452; Reynolds v. Reynolds, 81 id. 362. These cases hold such examinations to inquire into defendant’s means should not be granted in this class of cases. The reason announced is that “ the question of defendant’s financial condition in reference to any award of alimony does not become an issue until plaintiff has succeeded in establishing her right to the judgment which she seeks.” Van Valkenburgh v. Van Valkenburgh, supra. The situation is likened to those in which an accounting is sought — where it is first determined if there is a right to an accounting and, if -so, an interlocutory judgment is entered and later the accounting is had. In such cases orders for examination as to matters that might arise only on the accounting have been held to be improper if granted before the interlocutory judgment was entered. Moore v. Reinhardt, 132 App. Div. 707; Gow v. Ward, 144 id. 593. But are such cases analogous 1 In a separation the plaintiff seeks support as well as a separation and must prove facts justifying a provision for alimony as well as for the separation, and all this proof must be made before the plaintiff rests. The practice — at least in this department — is not to take proof as to whether a separation shall be decreed and then enter judgment thereon — and later [59] take proof to show what the amount of the alimony should be. The reason, therefore, of the rule as stated in the cases cited would seem not to make them applicable to actions here. That there is some such practice in the department deciding those cases would appear from the statement in the dissenting opinion in the Van ValJcenburgh case, supra. If a plaintiff cannot have an examination of the defendant in such an action for the purpose of proving his ability to make provision for the plaintiff’s support, before the case is tried, then she can never have it in such an action. There is no other time when it could be had. There is no interim between the making of the decision awarding a separation and that fixing the amount of the alimony. The effect of the cases cited, on separation actions in this county at least, would be to absolutely prohibit such examinations. There seems to be nothing in the law justifying such a distinction or discrimination. . There is another reason why the cases cited should not be followed. Section 1766 of the Code of Civil Procedure provides that in a separation ease the court may “ render a judgment, compelling the defendant to make the provision specified in this section (for. support), where, under the circumstances of the case, such a judgment is proper, without rendering a judgment of sepáration.” Thus a separation need not be granted and yet the.plaintiff be allowed support. This provision of the law is not mentioned in the cases cited and was probably not called to the attention of the court. Under all the circumstances I feel constrained to hold that the cases referred to are not applicable, under the practice that prevails in this county, and that the motion to vacate the order for defendant’s examination must be denied. It seems to me, however, that if the defendant wishes to appeal from this decision a stay of proceedings [60] under the order for the examination should be granted, as this question apparently has not been passed upon by the Appellate Division in this department. Ordered accordingly..