Lerner v. Kraus

LEHMAN, J. The plaintiff sues the defendant for the agreed price of services rendered in obtaining a tenant for a building. The answer is a general denial. The plaintiff obtained an order for the examination of the defendant" in regard to matters which the plaintiff must prove, and of which the defendant has personal knowledge. [33] The defendant then moved to limit the examination by excluding inquiry of conversations had between the plaintiff and the defendant. [1, 2] It is well established that the purpose of an examination before trial is to enable the moving party to obtain testimony for use at the trial, and not to enable him to cross-examine his adversary, or to obtain in advance knowledge of the evidence of his adversary. While ordinarily an examination of an adverse party will be granted, where it is shown that such an examination is sought for the purpose of obtaining his testimony upon issues which the moving party must in the first instance establish, it should be refused, where it fairly appears that the claim that the examination is sought for the purpose of obtaining testimony for use at the trial is merely a cloak for some other purpose. [3, 4] In this case the plaintiff’s cause of action is denied by the defendant under oath; and, though this fact in itself obviously is no ground for refusing an examination, yet it is a fact to be considered upon the probability of the good faith of the moving party in seeking the examination. Kornbluth v. Isaacs, 149 App. Div. 108, 133 N. Y. Supp. 737. So far as the examination concerns matters outside of the conversations personally had with the plaintiff, it may well be that the plaintiff is seeking the examination in good faith, but it is so improbable that the plaintiff expects to obtain from an examination as to these conversations testimony which he could use at the trial that I am constrained to the view that, as to such matters, the examination is sought merely to obtain in advance the version of the conversations with which the defendant expects to meet the plaintiff’s affirmative case. The order denying the defendant’s motion to limit the scope of the examination should therefore be reversed, with $10 costs and disbursements, and motion granted, with $10 costs. BIJUR, J., concurs.