Brucato v. Sciortino

BIJUR, J. [1] This action is brought to recover damages arising out of the loss at sea of a shipment of lemons, which plaintiff alleges defendant had agreed to insure “against al-1 loss,” and which plaintiff’s assignor had agreed to consign to defendant’s agents. Plaintiff alleges that the goods were so consigned, but that defendant had failed to insure them against loss at sea. Defendant specifically denies that he agreed to insure said shipment against all loss, and that the bills of lading were to be made out to the order of his agents. It is difficult to understand how in this condition of the pleadings plaintiff can truthfully say that he intends to use defendant’s deposition upon the trial, or to avoid the inference that the examination is sought purely for the purpose of cross-examination. The state of [646] the pleadings clearly shows that this case is not within the rule of Kornbluth v. Isaacs, 149 App. Div. 109, 133 N. Y. Supp. 737, to the effect that, even though defendant denied the allegations of the complaint, if it be reasonable to suppose that defendant can testify to facts or circumstances tending to prove plaintiff’s version of the transaction and to disprove defendant's, the examination should be allowed. In the case at bar it is evident that defendant’s contention is limited to a denial that he agreed to insure the shipment “against all loss,” while plaintiff’s claim is that defendant so agreed. [2] Plaintiff urges that at all events he is entitled to examine defendant to prove that John Monroe & Co. was defendant’s agent. I cannot find an allegation to that effect in the complaint, though there is in the third paragraph thereof a parenthetical description of John Monroe & Co. as “the agents of the defendant,” and it may be that by a denial of that paragraph defendant has put that supposed allegation in issue. As it seems quite unobjectionable to examine defendant on that point, the order will be modified, by excluding from the examination any fact except as to the agency of John Monroe & Co., and, as so modified, affirmed, with $10 costs and disbursements to appellant. All concur.