Wilson v. Nevins

New York Supreme Court

Wilson v. Nevins

63 Misc. 380, 118 N.Y.S. 421

DecidedMay 15, 1909

StatusPublished

This text of 63 Misc. 380 (Wilson v. Nevins) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Wilson v. Nevins, 63 Misc. 380, 118 N.Y.S. 421 (N.Y. Super. Ct. 1909).

Pincite

Opinion

Gildersleeve, J.

The motion is to modify an order for the examination of defendant before trial by vacating a subpoena duces tecum issued upon said order. The defendant was required to testify as to the furnishing of certain goods and performance of certain labor and concerning payments made by defendant for goods alleged to have been furnished to his wife. The subpoena duces tecum seems to be premature, as it does not appear that the various papers covered by the subpoena will be required to refresh the recollection [381]*381of defendant to enable him to give testimony to which plaintiffs may be entitled. It does not appear that the nature of the matters concerning which the defendant is to be examined or his general attitude toward the examination is such that it is reasonably certain that he will not or cannot answer the questions to be propounded to him, without reference to his books and papers; so that there is no reason here for departing from the rule that the issuance of a subpcena duces tecum should await until it appears on the examination that the papers are necessary to enable the party to testify. Motion to the extent above indicated granted. Ho costs.

Ordered accordingly.

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Gildersleeve, J.

The motion is to modify an order for the examination of defendant before trial by vacating a subpoena duces tecum issued upon said order. The defendant was required to testify as to the furnishing of certain goods and performance of certain labor and concerning payments made by defendant for goods alleged to have been furnished to his wife. The subpoena duces tecum seems to be premature, as it does not appear that the various papers covered by the subpoena will be required to refresh the recollection [381]*381of defendant to enable him to give testimony to which plaintiffs may be entitled. It does not appear that the nature of the matters concerning which the defendant is to be examined or his general attitude toward the examination is such that it is reasonably certain that he will not or cannot answer the questions to be propounded to him, without reference to his books and papers; so that there is no reason here for departing from the rule that the issuance of a subpcena duces tecum should await until it appears on the examination that the papers are necessary to enable the party to testify. Motion to the extent above indicated granted. Ho costs.

Ordered accordingly.

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Bluebook (online)

63 Misc. 380, 118 N.Y.S. 421, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilson-v-nevins-nysupct-1909.