Crowe v. Marsh Garage Co.

Lauer, J. This is a motion to vacate a notice to take the deposition of the defendant before trial given pursuant to section 290 of the Civil Practice Act. The motion to vacate is made pursuant to section 291 of the same act. I am of the opinion that the provisions of the Civil Practice Act for the taking of testimony by deposition pursuant to section 290 and the practice thereon as it [661] is now contained in the Civil Practice Act is applicable to the Municipal Court of the city of New York. The Civil Practice Act by section 1, article 1, provides that “ This act shall be-known as The Civil Practice Act, and, except as otherwise expressly provided, shall apply to the civil practice in all the courts of record of the State.” The Municipal Court of the city of New York is a court of record. Mun. Ct. Code, § 1. When the case of Mitchell v. Schroeder, 94 Misc. Rep. 270, was decided by the Appellate Term and subsequently affirmed by the Appellate Division on the opinion of Mr. Justice Lehman (174 App. Div. 857), subdivision 4 of section 27 of the Municipal Court Code, which was added by chapter 610 of the Laws of 1916 and which conferred the power upon the Municipal Court of taking the deposition of a party to an action, had not been enacted. By subdivision 4 of section 27 of the Municipal Court Code the deposition of a party to an action in.the Municipal Court or of a person who expects to be a party to an action about to be brought in that court may be taken at his own expense or at the instance of an adverse party or by a co-plaintiff or co-defendant at any time before or during the trial “ in the same manner as such depositions are taken under the provisions of law applicable to like cases in the supreme court.” There can be no doubt that, even though effect be given to the case of Mitchell v. Schroeder, supra, the power to take the deposition of a party having been vested in the Municipal Court by subdivision 4 of section 27 of the Municipal Court Code, the practice and procedure as it prevails in the Supreme Court by express provision of that section is the proper practice to pursue in this court. Such also is the plain intent of the provisions of section 15 of the Municipal Court Code which provides that “ except [662] as otherwise provided in this act or in the rules, the practice, pleadings, forms and procedure in this court shall conform, as nearly as may be, to the practice, pleadings, forms and procedure existing at the time in like causes in the supreme court, any statutory limitations, heretofore enacted, to the contrary thereof notwithstanding.” I entertain, therefore, no doubt that the practice pursued in this case is correct. The pleadijigs in this case are oral. As appears from the endorsement upon the summons the nature and substance of the cause of action is stated “ an action.to recover broker’s commissions for the sale of defendant’s garage at 201 St. Marks avenue, Borough of Brooklyn, N. Y.” The defendant’s answer as endorsed on the defendant’s written notice of appearance filed is “ General denial.” The defendant thus sought to put in issue every fact necessary for the plaintiff to prove in order to establish his cause of action. The plaintiff’s notice which in effect required the defendant to be examined on-each one of the issues of the case was quite correct in form and substance. The defendant I think has not' correctly interpreted the purpose of the examination of the defendant before trial in this case when he characterizes it as a fishing excursion, in view of the general denial interposed by it, nor do I think that the plaintiff should be denied the right to examine the defendant before trial in this case because he filed a bill of particulars of his claim in pursuance of the demand of the defendant. Motion to vacate the notice is denied, with ten dollars costs.