F. Garia Bro. & Co. v. Salomon

BISCHOFF, J. The action is brought by a principal against its agents to recover insurance moneys received by the agents for the destruction of its goods shipped when in their control or subject to their dominion as agents; and an examination before trial was sought in order that the plaintiff might obtain the testimony of one [509] of the defendants as to the manner in which the goods were shipped, and as to the companies by whom the insurance moneys were paid. The necessity and materiality of this evidence for use upon the trial, and the fact of the agent’s peculiar knowledge, sufficiently appear from the affidavits and from the circumstances of the case as disclosed by the complaint. The controversy arises between principal and agent, and in such a case the technical rules insisted upon by the appellants are to be relaxed in the interest of a full and fair disclosure. Whitman v. Keiley, 58 App. Div. 92, 95, 68 N. Y. Supp. 551. Within the authorities, these papers were sufficient to support the order for the defendants’ examination. Com. Pub. Co. v. Beckwith, 57 App. Div. 574, 68 N. Y. Supp. 600; Insurance Press v. Montauk Fire Co., 70 App. Div. 50, 74 N. Y. Supp. 1093. And there appears to be no substantial merit in the appeal. Order affirmed, with $10 costs and disbursements. All concur.