Opinion
February, 1919.
Andrew J. Nellis, for plaintiffs.
Visscher, Whalen Austin (H. Le Roy Austin, of counsel), for defendant.
This is a motion by the defendant to vacate an order, heretofore granted by Mr. Justice Chester to the plaintiffs, permitting the latter to examine before trial two of the defendant's employees. namely, two of its yardmasters stationed at Troy, N.Y.
It is claimed by the plaintiffs that material facts, necessary to the prosecution of the plaintiffs' case, may be proved by these two witnesses to conform to the requirements of the plaintiffs' case if they are to avoid a nonsuit, as indicated by the Court of Appeals in a previous trial hereof. Barnet v. New York Central H.R.R.R. Co., 222 N.Y. 195, 200. The special circumstances urged by the plaintiffs as the ground of sustaining this examination before trial are that the examination would promote justice, lessen litigation and save the time of the court and of litigants; that unless the plaintiffs can make the proof indicated by the Court of Appeals, they must be nonsuited and if they can prove the missing facts they can make a case for the jury. The plaintiffs allege that they expect to determine that question upon this examination.
All that the plaintiffs urge would perhaps be entertained as sufficient ground for an examination before trial of a party to an action, but the right to examine a witness other than a party before trial and the right to examine a party depend upon entirely different grounds.
There is a growing tendency toward liberality in the granting of orders for the examination of a party before trial but an order for an examination of a witness not a party, sought upon the ground of "special circumstances," as that term is used in section 872, subdivision 5, should be sparingly granted upon a well grounded apprehension that the examination of the witness cannot be had upon the trial and only when it is necessary to prevent a failure of justice. Hill v. Bloomingdale, 136 A.D. 651; American Woolen Co. v. Altkrug, 139 id. 671; Chittenden v. San Domingo Imp. Co., 132 id. 169. The circumstances must be such as would justify the conclusion that the deposition could be read upon the trial under section 882 of the Code. Hancock v. First National Bank, 93 N.Y. 82, 86; Automobile Club v. Canavan, 128 A.D. 426, 428; American Woolen Co. v. Altkrug, supra.
It does not appear in any way that the plaintiffs are in hazard of losing the testimony of these witnesses upon the trial or that to deny the privilege of this examination would end the plaintiffs' case. Rather it is to see whether the plaintiffs can profitably go to trial at all or it is to prepare for trial; and neither of these is sufficient, under the authorities, to warrant an examination of a witness other than a party.
Plaintiffs' counsel has endeavored to show by reference to the case of Goldmark v. United States Electro-G. Co., 111 A.D. 526, cited with approval in our department in Meade v. Southern Tier Masonic Relief Assn., 119 id. 763, that a liberalized rule has been established as to the examination of a witness other than a party, sweeping away technical rules and permitting such an examination, provided facts are alleged showing the examination is material and necessary; that the examination is no longer for the mere purpose of perpetuating testimony for use upon the trial.
This is not so. The reading of the opinion in the Goldmark case might lead one to believe that the president of the corporation was to be examined as a mere witness, not as an officer of the corporation. The statute, however, does not authorize the examination of a corporation without examining one or more of its "officers, directors or managing agents." Code Civ. Pro. § 872, subd. 7. And an investigation of the record in the Goldmark case, particularly the order of examination therein, a copy of which is hereto attached, shows clearly that the proceeding was only for the examination of the defendant corporation as a party. The witness, Louis Pothoff, was ordered to be examined "as President of the above named defendant" and he was required to produce books "of said defendant," not his own books and papers.
The statute does not authorize the examination of an officer apart from the examination of the corporation and certainly that was not the effect of the order in the Goldmark case. In the Meade case Mr. Justice Chester indicated that this was the law as to corporate parties and directed a modification of the order in that case so that in form at least it would be an order of examination of the defendant by requiring its secretary to be examined and produce its books and papers. But that does not warrant the interpretation that the Appellate Division in this department has sanctioned here a modification of the order for the examination of these yardmasters so as to make it an order for the examination of the defendant and requiring these yardmasters to be examined. These yardmasters are not "officers, directors or managing agents" of the corporation within the meaning of section 872, subdivision 7 of the Code of Civil Procedure.
An order may be entered vacating the order of Mr. Justice Chester for the examination before trial of the two witnesses in question, with ten dollars costs of this motion.
ORDER FOR EXAMINATION BEFORE TRIAL, READ BY DEFENDANT IN SUPPORT OF MOTION
SUPREME COURT — COUNTY OF NEW YORK.GODFREY GOLDMARK, Plaintiff, v. U.S. ELECTRO-GALVANIZING COMPANY, Defendant.
On reading the annexed affidavit of Godfrey Goldmark, sworn to herein on January 9, 1906, and the pleadings thereto annexed, and on motion of Steele, De Friese Frothingham, attorneys for the above named plaintiff, it isOrdered that Louis Pothoff, as President of the above named defendant, be examined, and his deposition be taken, pursuant to section 873 of the Code of Civil Procedure, and for that purpose he appear before me, at a Special Term of this court to be held at the County Court House in the borough of Brooklyn, city of New York, on the 17th day of January, 1906, at ten o'clock in the forenoon, and submit to an examination concerning the matters set forth in said affidavit.
Further ordered that said Pothoff produce upon said examination the order books, contract books, ledgers, bank books and check books of said defendant, and any other books or papers containing entries of the matters involved in this action; such production of the books being only for the purpose of refreshing the recollection of said Pothoff, and aiding his memory in the oral examination; such books not being produced for the purpose of examination or inspection by plaintiff or his counsel.
Service of a copy of this order, and of the papers hereto annexed, upon said Louis Pothoff personally, on or before the 12th day of January, 1906, shall be sufficient service thereof.
Dated January 10 th, 1906.
WILLIAM J. KELLY, Justice of the Supreme Court.
(Supreme Court, Appellate Division, First Dept., Vol. 1130.)