Bloom v. Pond'S Extract Co.

18 N.Y.S. 179

Opinion

McAdam, J.

The necessity for the examination of the defendant’s treasurer as a witness before trial is that the fact sought to be proved, i. e., whether Evans, who made the contract on behalf of the defendant, had authority to make it, is peculiarly within the knowledge of the defendant. Manufacturing Co. v. Sutro, (Sup.) 6 N. Y. Supp. 384. The plaintiff need not allege that there are no other witnesses by whom the fact may be proved. Videtto v. Dudley, (Super. N. Y.) 4 N. Y. Supp. 437. The plaintiff has made out a fair case for the examination required. Bradley v. De Goicouria, 12 Daly, 397; Be Witt v. McDonald, 1 Civil Proc. R. 86, note; Herbage v. City of Utica, 109 N. Y. 81, 82, 16 N. E. Rep. 62. The examination must proceed on September 14th, at 12 m. The defendant’s treasurer need not produce the books or papers referred to in the order, (Levey v. Railroad Co., 53 N. Y. Super. Ct. 267,) except as decided in Black v. Curry, 1 Civil Proc. R. 193. There is a conflict in the authorities, but the cases cited seem to be in keeping with the present understanding of the practice. 27o costs.