Century Holding Co. v. Ebling Brewing Co.

152 N.Y.S. 630

• Court: Appellate Terms of the Supreme Court of New York
• Decided: April 15, 1915
• Status: Published

Opinion

BIJUR, J.

The complaint seeks to hold the, defendant as assignee of a lease granted by plaintiff to one Schultz. The answer, apart from denials, contains the admission of some form of assignment of the lease by Schultz to the defendant, alleging, however, that it was by means of a “deed poll * * * as collateral security” for a loan, denies that the defendant entered into possession, and alleges, further, that “for the purpose of divesting itself of all and singular its right, title, and interest in the said lease” defendant “did execute and deliver its certain deed poll, wherein it did grant and convey unto the assignee therein described” all its right to said lease—the assignee not being named or further described.

[1] The original order for the examination of defendant covered substantially all the issues raised by the pleadings, and required defendant to produce all papers executed by Schultz to itself, and also the “deed poll” from defendant to the unnamed assignee, and any other papers between them. The order appealed from limits the examination “to possession of the premises,” and to “produce, if it is in its possession, the lease from Schultz to the defendant, or any assignment thereof.” It seems to me that the limitation of the examination, so far’ as the relations of Schultz and the defendant are concerned, to the mere production of the assignment of the lease is incorrect, and the limitation to the question of possession, is apparently based on an erroneous view of the law. See Seventy-Eighth Street, etc., Co. v. Purssell Co. (App. Div., First Dept.) 152 N. Y. Supp. 52; also Adams v. Koehler & Co., 136 App. Div. 623, 121 N. Y. Supp. 390. Plaintiff is entitled to examine the defendant in order to prove the assignment of the lease by Schultz and its acceptance by defendant, together with the circumstances and accompanying documents.

Defendant’s claim that plaintiff cannot, in good faith, expect defendant to prove what it has denied in its answer, is not justified by the circumstances of this case. The contradictory allegations of the complaint and the answer, respectively, do not relate to a physical fact or a conversation such as were involved in the cases cited by defendant (Weeks v. Whitney, 146 App. Div. 621, 131 N. Y. Supp. 408; Vogel Co. v. Backer Co., 148 App. Div. 639, 133 N. Y. Supp. 225; Lerner v. Kraus, 147 N. Y. Supp. 32; see, also, Skolny v. Richter, 139 App. Div. 534, 124 N. Y. Supp. 152), but falls plainly within the distinction pointed out by Mr. Justice Lehman in Kornbluth v. Isaacs, affirmed on his opinion, 149 App. Div. 108, 133 N. Y. Supp. 737, as a matter involving a transaction concerning the general purport or legal significance of which the opposing parties may well differ radically.

[2] Regarding the further subject covered by the original order for examination, namely, the transaction between defendant and its alleged unnamed assignee, I think that both the language and the spirit of Schweinburg v. Altman, 131 App. Div. 795, 116 N. Y. Supp. 318, authorize the examination.

The order appealed from is therefore reversed, with $10 costs and disbursements to appellant. All concur.