Neurath v. Schmitz.

[] is proper (§ 492 Code, and the numerous cases in the references in Bliss' Code, § 492.)

There is no occasion or propriety to pass upon the various objections made to the defendant's answer for want of certainty, &c., if defendant elects to stand on his answer, for it may be that he will elect to abide by his demurrer, and in that event, his answer will disappear from the case.

Motion to compel election granted, with ten dollars costs of motion.

NEURATH, APPELLANT, v. SCHMITZ, AND AÑO., RESPONDENTS.

N. Y. COURT OF COMMON PLEAS, GENERAL TERM, MARCH, 1882.

§ 870, et seq.

Examination of party before trial.*— When order for, should not be granted.-Examination must be necessary to party applying for it.—No

affidavit of intention to use deposition on trial of action necessary.

Where the complaint in an action alleged that the defendants had received from one P. S. the sum of $7,200 for the use of the plaintiff. no part of which had been paid by them except the sum of $3,633, and it appears from a bill of particulars served by plaintiff that of the said sum $6000 was cash received by defendants from P. S. and $1200 the proceeds of a mortgage placed in defendants' hands by P. S. and collected by them, and an affidavit upon which an order for the examination of the plaintiff before issue joined, was granted at the instance of the defendants recited, that said P. S. was the father of defendants and is dead; that defendants did not during the time mentioned in the complaint receive from their father the sums of money therein stated or any other sums to the use of the

* See note on this subject, 1 N. Y. Civ. Pro. 111.

Neurath v. Schmitz.

plaintiff or otherwise, and have made the payments to plaintiff set forth in the complaint; that "the defendants are wholly ignorant of any possible ground upon which the plaintiff can base the allegations of her complaint, and can only conjecture that the allegations of the complaint are conclusions deduced from facts of which they are wholly ignorant," and that the mortgage, the proceeds of which are claimed by plaintiff, was purchased from T. S. by one of the defendants, who paid "the full purchase price therefor." VAN BRUNT, J., Held, on appeal from an order denying motion to vacate order for plaintiff's examination before issue joined, that the party applying for the order for examination must specify the facts and circumstances which show that the examination of the adverse party is material and necessary ;['] that there is not the slightest reason to suppose, upon the facts stated, that the plaintiff could give any evidence which is necessary and material to the defendants' cause, [*] and the order appealed from should be reversed. [3] VAN HOESEN, J. (concurring in result), Held, that if the facts are as stated by the defendants a general denial will completely protect them,[*] and the order appealed from should be reversed. [] After answer it may be proper for the defendants to astablish their case by the testimony of the plaintiff, and then, upon presenting a proper affidavit, they may obtain an order for her examination. [*] J. F. DALY, J. (dissenting), Held, that as to any personal transactions at which defendants were not present between plaintiff and P. S. deceased, plaintiff may be examined if defendants desire, ['] but as to transactions at which all the parties were present an examination would not be necessary to enable defendants to prepare their answers or prepare for trial, [] and the order for plaintiff's examination should therefore be modified so as to provide that "the examination shall not include transactions at which defendants, or either of them, and plaintiff were present." ['']

The examination of a party before trial must not only be material but necessary to the party applying for it.[] (Opinion of J. F. DALY, J.)

It is necessary that a party applying for an order for the examination of the adverse party before trial should swear that he intends to use the deposition on the trial. [10] (Opinion of J. F. DALY, J.) (Decided, December 4, 1882.)

Appeal by plaintiff from an order of Hon. MILES BEACH denying a motion to vacate an order made by him requiring her to appear and be examined under sections 870 and 872 of the Code.

VOL. II.-26

Neurath v. Schmitz.

The application for the examination of plaintiff was made by defendants before service of answer.

The complaint sets out that at sundry times between September 18, 1876, and September 23, 1876, defendants received from one Peter Schmitz, the sum of $7,200, for the use of plaintiff, that they have not paid her any part thereof except the sum of $3,633. A second cause of action for $107.50, for services as housekeeper to defendants is also alleged.

A bill of particulars served by plaintiff states the items of the first cause of action as follows:

"About September 18, 1876, cash received by defendants from Peter Schmitz to use of the plaintiff,

"About September 20, 1876, cash received by defendants from Peter Schmitz to the use of the plaintiff,

"About January 3, 1877, cash proceeds of a mortgage by William O. Madden and Mary his wife, to Charles Heydtmann and Christine Heydtmann, and bearing date on or about January 2, 1874, and by them assigned to Peter Schmitz by assignment bearing date on or about September 19, 1876, without consideration, and which mortgage was placed in defendant's hands by Peter Schmitz and collected by them to the use of the plaintiff,

$3,100.00

2,900.00

1,200.00

$7,200.00

$500.00

150.00

5.00

2,978.00 3,633.00

$3,567.00"

Neurath v. Schmitz.

The nature of the defense, as set forth in the affidavit on which the order for plaintiff's examination was granted, is "that defendants have not, nor has either of them, received the moneys from Peter Schmitz or any one else alleged in the complaint to have been received by them, from said Peter Schmitz, or any part of them to the use of the plaintiff or otherwise, and that defendants did not, nor did either of them, ever employ the plaintiff as housekeeper or otherwise."

The affidavit to procure the order for plaintiff's examination made by the defendants states, as a compliance with Rule 89 of the general rules of practice, and subdivision 4 of section 872 of the Code, "that the testimony of the plaintiff, as a party before trial, is material and necessary for the defendants, to enable them to prepare and answer to the complaint, and also for the defense of the action, and for the following reasons, among others: Peter Schmitz, from whom defendants are alleged to have received said money for the use of the plaintiff, was the father of the defendants, and died on or about February 3, 1881. This defendant did not, during the years 1876 or 1877, receive from said father the sums of money stated in the complaint, or any other sums, to the use of the plaintiff or otherwise, and has not made the payments to the plaintiff stated in the complaint, or any other sums to the use of the plaintiff or otherwise, and has not made the payments to the plaintiff stated in the complaint, or any or either of them. The defendants are wholly ignorant of any possible ground upon which the plaintiff can base the allegations of her complaint, and can only conjecture that the allegations of the complaint are conclusions deduced from facts of which they are wholly ignorant, and what those facts are they cannot even surmise; and that such belief is strengthened by the disclosures in the bill of particulars of the character of plaintiff's claim for $1,200

Neurath . Schmitz.

out of the $7,200 alleged in the complaint to have been received by defendants from their said father to the use of plaintiff. It appears by said bill of particulars, that the claim for said $1,200, is based upon the alleged receipt by defendants of $1,200, being the proceeds of a certain mortgage, apparently though not clearly claimed to have belonged to plaintiff; whereas the fact was that the mortgage was purchased by said father of defendants from one Charles Heydtmann, and for which said Heydtmann received the full purchase price, and which the defendant, Theodore Schmitz, subsequently purchased from his said father, and for which he paid him the full purchase price therefor; and they therefore pray that an order may be granted requiring the plaintiff to appear and be examined as a party before trial, both for the purpose of enabling the defendant to answer the complaint, and also because such testimony is material and necessary for the defendants for the defense of the action."

The order for the plaintiff's examination required her "to testify and give evidence as a party before trial, . . . . touching all or any of the matters mentioned or referred to in said complaint, bill of particulars" and affidavit of the defendants.

....

The plaintiff, on the day named for the examination, moved to vacate the order before the judge who granted it. The motion was denied, but the justice directed that the order be modified by striking out the words "touching all or any of the matters mentioned or referred to in said complaint, bill of particulars and annexed affidavit of Theodore Schmitz and Anna Schmitz, or any or either of them," and by inserting in lieu thereof, "touching the time when, and the place where, and the circumstances attending the ownership and delivery by plaintiff to Peter Schmitz, and by him to the defendants and the circumstances under which the receipt of the monies alleged to have