Hambleton v. Tide Water Oil Sales Corp.

Appellate Division of the Supreme Court of New York

Hambleton v. Tide Water Oil Sales Corp.

213 A.D. 52, 209 N.Y.S. 659, 1925 N.Y. App. Div. LEXIS 8431

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 6, 1925

StatusPublished

This text of 213 A.D. 52 (Hambleton v. Tide Water Oil Sales Corp.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hambleton v. Tide Water Oil Sales Corp., 213 A.D. 52, 209 N.Y.S. 659, 1925 N.Y. App. Div. LEXIS 8431 (N.Y. Ct. App. 1925).

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Opinion

Per Curiam:

The plaintiff has proceeded under sections 289, 292 and 294 • of the Civil Practice Act for the examination before trial of a New York city representative of the defendant corporation; also, under section 288 of the Civil Practice Act, for the examination of two witnesses' at Buffalo, N. Y.; and under sections 296 and 324 of the Civil Practice Act, and rules 140-142 of the Rules of Civil Practice, for the production and examination of books and records of the defendant. The order appealed from denied the application to examine the witnesses but provided for the examination of a concededly appropriate representative of the defendant and for the production of books and papers. There is no real objection to the procedure followed. The only question presented is whether or not the order as made should be modified.

Inasmuch as plaintiff is to have the examination of defendant’s representative, there is no good reason at present for permitting the examination of the witnesses who are neither parties nor employees of parties. No “ special circumstances ” exist, nor do any of the other reasons mentioned in section 288 of the Civil Practice Act appear which would entitle the plaintiff to take the testimony of said witnesses. (Bloede Co. v. Devine Co., 211 App. Div. 180.)

However, the order limits the plaintiff to the examination of “ records, documents and book entries of transactions identified by the witness,” etc. This limitation places the plaintiff too much at the mercy of an unwilling witness; therefore, the words “ identified by the witness as ” should be stricken from the order.

[54]*54The order appealed from, should be modified as above indicated and as thus modified affirmed, with ten dollars costs and disbursements to the appellant.

All concur. Present — Hubbs, P. J., Clark, Davis, Sears and Taylor, JJ.

Order modified in accordance with the opinion and as so modified affirmed, with ten dollars costs and disbursements to the appellant.

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Per Curiam:

The plaintiff has proceeded under sections 289, 292 and 294 • of the Civil Practice Act for the examination before trial of a New York city representative of the defendant corporation; also, under section 288 of the Civil Practice Act, for the examination of two witnesses' at Buffalo, N. Y.; and under sections 296 and 324 of the Civil Practice Act, and rules 140-142 of the Rules of Civil Practice, for the production and examination of books and records of the defendant. The order appealed from denied the application to examine the witnesses but provided for the examination of a concededly appropriate representative of the defendant and for the production of books and papers. There is no real objection to the procedure followed. The only question presented is whether or not the order as made should be modified.

Inasmuch as plaintiff is to have the examination of defendant’s representative, there is no good reason at present for permitting the examination of the witnesses who are neither parties nor employees of parties. No “ special circumstances ” exist, nor do any of the other reasons mentioned in section 288 of the Civil Practice Act appear which would entitle the plaintiff to take the testimony of said witnesses. (Bloede Co. v. Devine Co., 211 App. Div. 180.)

However, the order limits the plaintiff to the examination of “ records, documents and book entries of transactions identified by the witness,” etc. This limitation places the plaintiff too much at the mercy of an unwilling witness; therefore, the words “ identified by the witness as ” should be stricken from the order.

[54]*54The order appealed from, should be modified as above indicated and as thus modified affirmed, with ten dollars costs and disbursements to the appellant.

All concur. Present — Hubbs, P. J., Clark, Davis, Sears and Taylor, JJ.

Order modified in accordance with the opinion and as so modified affirmed, with ten dollars costs and disbursements to the appellant.

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213 A.D. 52, 209 N.Y.S. 659, 1925 N.Y. App. Div. LEXIS 8431, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hambleton-v-tide-water-oil-sales-corp-nyappdiv-1925.

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