Anderson v. Lisman

130 A.D. 134, 114 N.Y.S. 348, 1909 N.Y. App. Div. LEXIS 159

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 22, 1909
• Status: Published

Opinion

Per Curiam :

We think that the affidavit upon which the order for the examination . of the individual defendants was granted was sufficient to sustain the order. The basis of the action is .the contract between the Detroit Southern Railway Company and the Iron Railway Company. The defendants admit that there was such a contract, but deny that it is correctly set forth by plaintiff. He is certainly entitled to examine them to find out what the actual contract was. We think also that it is made apparent that defendants have knowledge as to the payment and disposition of the consideration. At least their undisputed relation to the transaction is suchas to justify the presumption that they have such knowledge, and this is sufficient. (Grant v. Greene, 118 App. Div. 850-853.) It may be that the order permitted too wide a scope for the examination. Upon that point we express no opinion, but if it did, the defendants’ remedy was to move to limit the examination, but not to vacate it in toto. As the plaintiff is clearly entitled to some examination the order vacating the order for examination must be reversed, with ten dollars costs and disbursements to the appellant, and the motion denied, with ten dollars costs, without prejudice to a motion by defendants to limit the scope of the examination. A date for the examination to proceed will be fixed in the order to be entered hereon which will be settled on notice.

Present — Ingraham, Laughlin, Clarke, Houghton and Scott, JJ.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, without prejudice to motion as stated in opinion. Settle order on notice.