Soiefer Farms, Inc. v. Quincy Mutual Fire Insurance

254 A.D. 768, 4 N.Y.S.2d 578, 1938 N.Y. App. Div. LEXIS 7537

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 20, 1938
• Status: Published

Opinion

In an action brought by plaintiffs, here respondents, to recover from the defendant insurance company, here appellant, upon certain insurance policies for loss of real and personal property destroyed by fire, order granting plaintiffs’ ■motion for an examination of the appealing defendant before trial and directing the production of documents by the defendant upon the examination, modified by striking out item 3 in the second ordering paragraph and by striking from the last ordering paragraph the words “ concerning the transactions involved in this suit ” and substituting therefor the words “ concerning these matters.” As so modified, the order, in so far as an appeal is taken therefrom, is affirmed, with ten dollars costs and disbursements to appellant. Even under the liberalized rule governing such examinations (Public National Bank v. National City Bank, 261 N. Y. 316), the order, in so far as appealed from, should not have been granted in the exercise of sound discretion. (Siebros Finance Corporation v. Fire Assn, of Philadelphia, 223 App. Div. 707.) Manifestly the examination was not sought by the plaintiffs in good faith and there is presented merely a proposed attempt on the part of plaintiffs to cross-examine defendant on matters relating to an affirmative defense. The examination may proceed on five days’ notice at the place and hour stated in the order. Lazansky, P. J., Davis, Johnston, Adel and Taylor, JJ., concur.

Timotea Ugalde, Respondent, v. Joseph Ugalde, Appellant.—■