Bannister v. Murray

152 N.Y.S. 192

• Court: Appellate Terms of the Supreme Court of New York
• Decided: March 18, 1915
• Status: Published

Opinion

HENDRICK, J.

The action is to recover $1,050, the alleged balance due upon a contract for the personal services of plaintiff as housekeeper for defendant. The complaint alleges a contract wherein defendant promised to pay plaintiff $500 a month, if plaintiff would take care of and keep in order, for defendant’s benefit, defendant’s apartment, from which sum plaintiff was to pay the rent and all expenses of the household. It is further alleged that defendant entered into the performance of the contract, that defendant made the stipulated payments up to June 1, 1914, and' that plaintiff performed her part of the contract up to October 1, 1914. for which period of four months defendant paid her on account $950, leaving due $1,050, for which this action is brought. The answer is a general denial.

The court, in granting the motion to vacate the order for defendant’s examination before trial, bases its action on two grounds: Eirst, that the plaintiff, prior to the motion to examine defendant, had moved to place the cause on the short-cause calendar, and that she did not then claim that it was necessary to have the testimony of defendant for use upon the trial; and, secondly, that, the defendant having denied the allegations of the complaint, it is inconceivable that he will testify otherwise upon the examination.

[ 1 ] The fact that the answer is a general denial does not preclude the plaintiff from his right to examine the defendant before trial. This rule is so well settled as to need no argument. Blum v. Rosenbaum, 87 Misc. Rep. 292, 149 N. Y. Supp. 960; Heine v. Weller, 82 Misc. Rep. 402, 143 N. Y. Supp. 752; Straus v. Peck (Sup.) 126 N. Y. Supp. 628, and cases therein cited; Kornbluth v. Isaacs, 149 App. Div. 108, 133 N. Y. Supp. 737, etc.

. [2] The fact that plaintiff sought to place the cause on the short-cause calendar before making the application to examine defendant is immaterial. The Code of Civil Procedure (section 870) provides that the examination may be taken “at any time, before or during the trial.”

[3] The learned court, in its opinion, suggests that the peculiar character of the contract and the atmosphere created by this litigation indicates that the plaintiff desires the examination, not for use upon the trial, but for the purpose of preparing for the trial, or for some ulterior and improper purpose. It may be that the trial will develop such a contract or such a relationship between the parties as would preclude the plaintiff from recovering the judgment. But we cannot assume that such will be the case. Certainly there is nothing in the papers used upon the motion that establishes it.

It seems that the plaintiff is within the rule that a party is entitled, as a matter of right, to the examination of an adverse party concerning material issues and in support of the case of the moving party. Caldwell v. Glazier, 128 App. Div. 315-317, 112 N. Y. Supp. 655; Lawson v. Hotchkiss, 140 App. Div. 297, 125 N. Y. Supp. 261; Bioren v. Campbell, 140 App. Div. 523, 125 N. Y. Supp. 392.

The order appealed from should be reversed, with $10 costs and disbursements, and motion denied, with $10 costs. All concur.