Opinion
April 21, 1911.
Charles Goldzier, for the appellant.
Clayton J. Heermance, for the respondents.
Defendant appeals from an order denying its motion to vacate an order for its examination by Walter MacBain, described as its managing agent within the city and State of New York. The plaintiffs sue as trustees for the benefit of the creditors of H. Leonard Simmons upon a policy of fire insurance issued by defendant. The complaint is in the form commonly used in such actions, and the answer, besides certain denials, contains two affirmative defenses, one that the insured made false and fraudulent proofs of loss, and the other that he swore falsely and produced fraudulent proofs upon an examination had pursuant to the terms of the policy. It is apparent from the affidavit upon which the order was granted that the plaintiffs' purpose is not to obtain evidence to support their case, or even to controvert the case which may be made by defendant, but is to gather such information as to the proofs in defendant's possession, as will enable them, in the language of the affidavit, "to avoid the defenses." The courts are at present disposed to grant orders for the examination of adverse parties with great liberality, even to the extent, in some cases, of permitting a plaintiff to examine the defendant as to an affirmative defense, but it still remains necessary that the evidence to be elicited is of such a character that it may be necessary and material to the moving party, and that he intends to use it upon the trial, but it is only in rare and exceptional cases, if at all, that the court will permit a plaintiff to pry into his opponent's defense merely for the purpose of "avoiding" it on the trial. ( Tuthill v. Schinasi, 141 App. Div. 520.) Upon this ground the motion to vacate should have been granted. It is also objected that it does not appear from the affidavit on which the order was granted that the person to be examined was an officer of defendant, for a corporation can be examined only through an officer or director. (Code Civ. Proc. § 872, subd. 7.) The party to be examined is described as a "Managing agent" which does not import, as language is ordinarily used, that he is an officer. There is no magic in names, however, and it may be in some cases and especially with reference to foreign corporations doing business in this State that the relation to the corporation and the duties of a person called a managing agent are such as to indicate that he is in fact an officer. But if this be so it is incumbent upon the party applying for the order to cause the fact affirmatively to appear, for there is no presumption that an agent, managing or otherwise, is an officer.
The order appealed from must be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.
INGRAHAM, P.J., McLAUGHLIN, MILLER and DOWLING, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.