Davenport Glucose Manufacturing Co. v. Taussig

This is an appeal from an order of the Special Term denying a motion to vacate an order directing the examination of the defendants before trial. The action is to recover possession of personal property, to wit, 250 barrels of glucose, alleged to have been sold by the plaintiffs to the defendants Taussig & Hammerschlag, who subsequently made a general assignment to the defendant Baricklo for the benefit of their creditors. The plaintiff replevied 170 barrels of glucose. It is alleged that the sale and possession were fraudulently obtained.

It must be conceded that the authorities in this district on the question of the right to make an order for the examination of parties, in an action where the plaintiff’s cause of action is for an alleged fraud, are somewhat in conflict. There is no case, however, we ■think, that holds in an action to recover possession of personal property, where the object is to ascertain from the defendants the •quantity of goods that came into their hands and the time when -.they received the same, and the time of making the sale or transfer *33-of the same to another party, and the quantity delivered to him, •etc., that such matters are not proper subjects for this preliminary ■examination.

In this case the assignee of the purchasers, Bariclrlo, who is not sought to be charged with fraudulent conduct, received the goods from the defendants. No reason can be imagined, why he may not be called and examined as to when and where he received the same, •and to what amount, and to prove whatever might be necessary touching the assignment to him of the goods by the other defendants and the disposition that may have been made thereof. It can hardly be conceived that his answers to such an examination can be supposed to subject him to a charge of fraud.

In respect of the other defendants it is vex-y obvious, as it seems •to us, that many questions may be asked which they will be bound to answer if called upon the trial, and if, in the course of such an -examination as this, questions may be asked which they decline to answer on the ground of privilege, their rights are precisely the .same as they would be upon the trial if the same questions were put to them there. They are not bound to criminate themselves, .and each may claim the personal privilege of refusing to answer-. Oh ■such an examination it would be for the judge to determine, as it would be on a trial at cix-cuit, whether the questions are such as they ,ax-e not bound to answer.

But the fact that some such questions may be put does not seem to be a good reason for holding that a party cannot be examined at .all in an action of this kind.

The cases referred to by the leaxmed counsel for the plaintiff do not go far enough; we think, to require us to hold that they -determine this case adversely to the respondents.

We see no ground, therefore, for interfering with the order of •the court below, and it should be affirmed, with ten dollars costs .and disbxxrsements.

Order affirmed, with ten dollars' costs and disbursements.