Sutro v. Rubber Trading Co.

(concurring). I concur on the ground that no facts are set forth in the affidavit from which it may be inferred that the defendant had on hand in New York during the months of December, 1914, and January, 1915, any quantity of rubber whatever. The apparent purpose of the examination is to ascertain whether the defendant did not have on hand a quantity of rubber; that is to say, whether the plaintiff cannot create a rebuttal to the affirmative defenses. An examination for such a purpose is just as unauthorized as is one to ascertain whether plaintiff had a cause of action. The examination concerning the time, manner, and route of the shipment of rubber is, as characterized by Mr. Justice BIJUR, merely “an anticipatory cross-examination.”

[1] So far as material to the present motion, this action may be said to have been brought to recover damages for a delayed delivery by defendant to plaintiff of five tons of rubber, “November (1914) shipment from Brazil.” In substance, the defense involved is that it was the known custom of the trade that shipments of rubber from Brazil to New York might be made via London, and that the war had delayed this particular shipment, which had been so made.

*104The examination ordered, and to which defendant objects, is as to the time, manner, and route of the shipment of rubber for defendant during the month of November from. Brazil to New York, and the amount of rubber which defendant had on hand in New York during the months of December, 1914, and January, 1915. As to the latter item, there appears to be no reason whatever for an examination of defendant. As to the former, it is quite evident that defendant must prove on the trial that the rubber in question was actually shipped as he claimed. There is no reason why plaintiff should examine him in that respect before trial; indeed, such examination cannot well be conceived of at the present time, except as an anticipatory cross-examination, which, upon familiar principles should not be allowed.

[2] Moreover, although there is a bare statement in the moving affidavit that the examination is to be had “for the purpose of using the same upon the trial,” the affidavit is replete with allegations that the examination is necessary for the plaintiff “in order to properly prepare for trial”—a purpose for which it is elementary that an examination will not be permitted.

Order reversed, with $10 costs and disbursements of the appeal, and motion granted, with $10 costs.

PAGE, J., concurs.