New York & Bermudez Co. v. Mowinckel

S.D. New York

New York & Bermudez Co. v. Mowinckel

227 F. 950, 1915 U.S. Dist. LEXIS 1119

CourtDistrict Court, S.D. New York

DecidedOctober 29, 1915

StatusPublished

Cited by1 cases

This text of 227 F. 950 (New York & Bermudez Co. v. Mowinckel) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

New York & Bermudez Co. v. Mowinckel, 227 F. 950, 1915 U.S. Dist. LEXIS 1119 (S.D.N.Y. 1915).

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Opinion

AUGUSTUS N. HAND, District Judge.

The respondent Hamburg-American Line is seeking discovery, not for the purpose of enabling it to answer, which it can do, but because it does not wish to [951]*951answer. It says that the answer might-tend to incriminate it, _ and, if it had discovery, such discovery might indicate that it had no interest in the controversy and is not a proper party.

I see no power under local admiralty rule 39 to grant discovery before answer. Interrogatories attached to the pleadings furnish the usual, if not the exclusive, remedy in admiralty, and, as I held in a memorandum dated March 16, 1915, in the case of Webb v. Samuels et al., 227 Fed. 948, a defendant in a civil suit must take his choice between answering or letting the proceeding go against him by default, and cannot, in my opinion, urge that he should be relieved from answering because his answer may incriminate him. Of course, he need not answer, but must suffer the consequences if he fails so to do. If the respondent, as appears to he the case, is in position to set up a defense which will be a bar to the action, it must plead it in the usual way.

The argument of counsel for the Hamburg-American Line is ingenious ; but, if the course he suggests were permitted, it would be incumbent upon this court to try out by affidavits and. examinations the question as to whether a party could be brought into court to plead at all. I know of no such practice, and while it may be that a preliminary hearing after issue joined might be a desirable way of disposing of some litigations without awaiting delay and expense of a formal trial, there is no such practice known to this court, and the suggestion on the part of respondent goes even one step further, and urges the court to allow a preliminary investigation to determine whether a party shall plead or not.

This should not, I think, be allowed.

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AUGUSTUS N. HAND, District Judge.

The respondent Hamburg-American Line is seeking discovery, not for the purpose of enabling it to answer, which it can do, but because it does not wish to [951]*951answer. It says that the answer might-tend to incriminate it, _ and, if it had discovery, such discovery might indicate that it had no interest in the controversy and is not a proper party.

I see no power under local admiralty rule 39 to grant discovery before answer. Interrogatories attached to the pleadings furnish the usual, if not the exclusive, remedy in admiralty, and, as I held in a memorandum dated March 16, 1915, in the case of Webb v. Samuels et al., 227 Fed. 948, a defendant in a civil suit must take his choice between answering or letting the proceeding go against him by default, and cannot, in my opinion, urge that he should be relieved from answering because his answer may incriminate him. Of course, he need not answer, but must suffer the consequences if he fails so to do. If the respondent, as appears to he the case, is in position to set up a defense which will be a bar to the action, it must plead it in the usual way.

The argument of counsel for the Hamburg-American Line is ingenious ; but, if the course he suggests were permitted, it would be incumbent upon this court to try out by affidavits and. examinations the question as to whether a party could be brought into court to plead at all. I know of no such practice, and while it may be that a preliminary hearing after issue joined might be a desirable way of disposing of some litigations without awaiting delay and expense of a formal trial, there is no such practice known to this court, and the suggestion on the part of respondent goes even one step further, and urges the court to allow a preliminary investigation to determine whether a party shall plead or not.

This should not, I think, be allowed.

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227 F. 950, 1915 U.S. Dist. LEXIS 1119, Counsel Stack Legal Research, https://law.counselstack.com/opinion/new-york-bermudez-co-v-mowinckel-nysd-1915.

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