Broad-Street National Bank v. Sinclair

City of New York Municipal Court

Broad-Street National Bank v. Sinclair

16 N.Y.S. 88, 40 N.Y. St. Rep. 691, 1891 N.Y. Misc. LEXIS 326

DecidedOctober 15, 1891

StatusPublished

This text of 16 N.Y.S. 88 (Broad-Street National Bank v. Sinclair) is published on Counsel Stack Legal Research, covering City of New York Municipal Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Broad-Street National Bank v. Sinclair, 16 N.Y.S. 88, 40 N.Y. St. Rep. 691, 1891 N.Y. Misc. LEXIS 326 (N.Y. Super. Ct. 1891).

Pincite

Opinion

Newburgher, J.

This is an appeal from an order denying a motion to vacate an order for the examination of defendant before trial. This action is brought upon a certain draft drawn by James F. Brook on Sinclair & Co., and accepted by them. The defendant answered, denying that she accepted said draft. It appears from the affidavit of the managing clerk of plaintiff’s attorney that the object of the examination of defendant is—First, to prevent surprise upon the trial; second, to dispense with the necessity of procuring witnesses to prove facts which may be admitted by said defendant upon examination. I know of no law or practice that permits such an examination. The authorities cited by respondent are cases in which it appeared from the papers that the examination was necessary in order to prove plaintiff’s case. In this case, however, it appears from the papers that not only is the plaintiff prepared to try the case, but names a number of witnesses he proposes to call to sustain his case. The object of an examination before trial is not to prevent surprises, but to assist a plaintiff to obtain facts which he cannot learn from other sources which are accessible to him. The order must be reversed, with costs.

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Newburgher, J.

This is an appeal from an order denying a motion to vacate an order for the examination of defendant before trial. This action is brought upon a certain draft drawn by James F. Brook on Sinclair & Co., and accepted by them. The defendant answered, denying that she accepted said draft. It appears from the affidavit of the managing clerk of plaintiff’s attorney that the object of the examination of defendant is—First, to prevent surprise upon the trial; second, to dispense with the necessity of procuring witnesses to prove facts which may be admitted by said defendant upon examination. I know of no law or practice that permits such an examination. The authorities cited by respondent are cases in which it appeared from the papers that the examination was necessary in order to prove plaintiff’s case. In this case, however, it appears from the papers that not only is the plaintiff prepared to try the case, but names a number of witnesses he proposes to call to sustain his case. The object of an examination before trial is not to prevent surprises, but to assist a plaintiff to obtain facts which he cannot learn from other sources which are accessible to him. The order must be reversed, with costs.

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Bluebook (online)

16 N.Y.S. 88, 40 N.Y. St. Rep. 691, 1891 N.Y. Misc. LEXIS 326, Counsel Stack Legal Research, https://law.counselstack.com/opinion/broad-street-national-bank-v-sinclair-nynyccityct-1891.