Tanenbaum v. Hilborn

The order appealed from vacating an order for the examination of the defendant before trial must be reversed. The papers upon which the vacated order was granted were sufficient. The only criticism which appears to be made of them is that they do not show that the testimony of the defendant is necessary to the establishment of the cause of action set out in the complaint. The defendant was sued for the breach of a contract .in and by which he agreed with the plaintiff’s assignors that they should procure as his agents insurance upon merchandise for a period of five years from a certain date, and also agreed that he would not procure insurance through any other broker than the plaintiff’s assignors, who should also be entitled to procure any insurance required in addition to that specifically referred to in the contract.

There are two breaches of the contract assigned: First, the non-employment of the plaintiff’s assignors; second, the employment of other brokers. Under the allegations of the complaint and the *90issues, as made by the answer, it is material for the plaintiff to show the breach of the contract by the defendant’s employment of other brokers. The facts of su'ch employment are peculiarly within the knowledge of the defendant. The plaintiff showed in his affidavit that he had no means of ascertaining who the other brokers were,, except by -tlie examination of the. defendant. The order for the examination was expressly limited to those facts, and such-considerations were presented to the justice who granted the order of examination, as authorized him to make it with the' limitation contained therein.

It is unnecessary to examine or comment upon the numerous authorities cited by counsel on both sides on this appeal, for, under the circumstances of this case, an examination of the defendant was proper. The order requiring it should be reinstated, and the order vacating it reversed, with ten dollars costs and disbursements.

Present—Van Brunt, P. J., Rumsey, • Patterson, O’Brien and Ingraham, JJ.

Order reversed, with ten dollars costs and disbursements, and order for examination reinstated.