Herrmann v. Osborne Co.

Levy, J. On May 14, 1925, a notice for defendant’s examination and a subpcena duces tecum were served upon one Kartel, the manager of its New York office. He appeared for examination pursuant to the notice and subpoena but brought no books or records with him. In the course of his examination he testified he had no access to these documents which were in Newark at the home office of defendant, a New Jersey corporation. The examination was adjourned for the purpose of having plaintiff’s 860 counsel inform the attorney for defendant just what papers or writings he felt he was entitled to examine and wished produced. Upon being furnished with such a statement, defendant’s attorney questioned plaintiff’s right to the examination of the books and records asked for, and suggested that a formal application be made for a court ruling in the premises. Although this occurred in June, 1925, plaintiff’s counsel made no attempt to obtain such a ruling or to take further steps until the making of this motion, shortly before the cause was scheduled to appear upon the day calendar. On this application for a so-called continuation of the examination, plaintiff asks that defendant appear not by Kartel but by one of its officers with knowledge of the facts and circumstances of the case, assigning as a reason for this the fact that Kartel’s testimony indicated that he had no personal knowledge of the subject-matter of the inquiry. There can be no question but that defendant would have been entitled to an order vacating the notice of examination had it originally applied for such relief. The action is one of libel in which a general examination before trial will not be granted in this department. (Welling v. Kugel, 215 App. Div. 770, affg., without opinion, the decision at Special Term, Part I, N. Y. L. J. July 29, 1925; Shaw v. Samley Realty Co., Inc., 201 App. Div. 433.) Moreover, there are additional objections to the examination. Item 1 of the notice deals with matters which are no part of the complaint and really seeks to pry into the affirmative defenses set up in the answer; item 2 goes far beyond the allegations of the complaint and is altogether too general in scope; item 3 is open to the same objection, not to speak of the fact that it deals in large part with inferences to be drawn from the alleged libelous letter, the writing of which is admitted in the answer. As the examination appears to be improper, the production of the books and records to be used in connection therewith would obviously be equally unauthorized. I am of opinion that defendant in permitting Kartel to furnish what might seem to be innocuous testimony rather than trouble itself with any effort to vacate the notice, did not necessarily waive its right to object in the premises. Besides, the plaintiff is, in reality, not seeking a continuation of Kartel’s examination but an entirely new investigation, and in respect to persons or officers of defendant, none of whom are identified with its New York office. In any event, plaintiff’s unexcused laches in waiting more than a year and a half until the very eve of the trial would appear to constitute in itself a sufficient reason for the denial of the inquiry. The motion is denied.