Insurance Press v. Montauk Fire Detecting Wire Co.

We think the affidavit upon which the order for the examination of this defendant was granted was sufficient to justify the order and that the court below properly refused to vacate it. The fact upon which the plaintiff’s cause of action depends is that $3,000,000 of the stock of a corporation were originally issued to the defendants John D. Gould and Charles A. Hanson as a consideration for the purchase of certain patents then owned or controlled by John D. Gould and Charles A. Hanson, and that said patents did not exceed! in value the sum of $10,000. The plaintiff desires to examine the said Gould for the purpose of obtaining testimony to be used upon the trial to prove that fact. The plaintiff must prove, to sustain his cause of action, that this patent was worth much less than the amount of stock which was issued for it. The Code provides for such an examination before trial where it is evident that the testimony of the person sought to be examined will be material upon the trial. The plaintiff is not bound to wait until the trial, when the defendant can keep out of the way and avoid the service of a subpoena, but he is entitled to have the testimony taken before trial so that it can be available for use when the case is tried.

We think the affidavit was sufficient to justify the court in ordering the defendant to be examined as a witness and that the order appealed from should be affirmed, with ten dollars costs and disbursements.

McLaughlin and Hatch, JJ., concurred; Van Brunt, P, J., and Laughlin, J., dissented.

I think the affidavits were clearly insufficient to require the granting of the order, and that the motion was properly denied. What is the assigned object of the proposed examination ? Not to obtain ■ evidence of a fact, but merely the opinion of the defendant Gould as to the value of the patents, which are a device for the discovery of fire. The patents have been purchased by the company of which plaintiff is a stockholder, and presumably they are in its possession and open to examination by the plaintiff, or any experts whose opinion he may desire concerning their value, at any time. It does *52not appear, nor is it alleged, that the defendant Gould possesses any special knowledge concerning them riot readily obtainable by others. It is not claimed that he has made any admission as to their value conflicting with the price charged on the sale to the company. It is alleged that this examination is material and necessary for the plaintiff' in the prosecution of the actiori, but it is not alleged either in substance or effect that the plaintiff intends to use the. evidence upon the trial. This is not a case where we may dispense with formal allegations of intention to use the testimony ■upon the trial, upori the ground that such is the. reasonable inference :to be drawn from all the facts arid circumstances disclosed. Here ■the inference is plain that the plaintiff does not intend to use this ■evidence upon the trial. . His object is to" ascertain how the defendant Gould thinks these patents can be utilized to produce a return which will justify the valuation at which they were turned over to the company. That is Gould’s defense, if he has any, and is something the plaintiff is not entitled to know in advance.

Van Bbunt, P. J., concurred.

Order affirmed, with ten dollars costs and disbursements.