Opinion
June, 1916.
Hendrick Hendrick, for defendant and motion.
Henry J. and Frederick E. Goldsmith (Henry J. Goldsmith, of counsel), for plaintiff, opposed.
In this action for alienating the affections of his wife and for criminal conversation, the plaintiff has procured an order for the examination of the defendant before trial. That order, upon the return day, the defendant moved to vacate upon the papers on which it was granted. As I construe the meaning of the decisions of the Appellate Division of this department in Wessel v. Schwarzler No. 1, 144 A.D. 587, and Wessel v. Schwarzler, No. 2, 144 id. 589, the motion should be granted. The former was an action brought by the mother for the seduction of her daughter and the latter was an action brought by the daughter for breach of promise of marriage, and in both cases for the same reasons it was held that the examination of the defendant before trial should not be permitted. The court remarked in the former of the cases cited (p. 588): "There are kinds of actions where we have felt that a wise discretion in the public interests should limit the examination and that in certain cases the peculiar circumstances have permitted the inference that the testimony was not sought in good faith to be used upon the trial but for improper and ulterior purposes. It is our opinion that in actions such as this, brought for large damages for seduction, the examination generally of the defendant should not be permitted. It is difficult to believe that plaintiff intends to use the testimony of the defendant to prove her case, and it is obvious that an order for examination might be used for ulterior purposes." This action is for $100,000 damages, and the defendant is charged with debauching and carnally knowing the plaintiff's wife, and more specifically it is alleged that he rented and furnished an apartment at a street and number named in the county of New York and lived with her as his wife in that apartment.
Motion granted.