The Beer Importing Company of America, Appellant, v. Eugene Boross and International Import and Export Company, Respondents

The Beer Importing Company of America, Appellant, v. Eugene Boross and International Import and Export Company, Respondents. First Department, February 18, 1910. Discovery — examination before trial. A corporation suing a former officer for breach of trust in that, when directed to procure a contract for the plaintiff, he procured the contract for another corporation of which he was an officer, is entitled to examine the defendant before trial to procure’ testimony to establish its case. Appeal by the. plaintiff, The Beer Importing Company of America, from an order of the Supreme Court, made at the New York Special Term, and entered in the office of the clerk of the county of Hew York on the 5th day of January, 1910, vacating an-order for the examination of. the defendant Boross before trial. Gilbert D. Lamb, for the appellant. J. Campbell Thompson, for the respondents. [MAJORITY — Miller, J.:] Miller, J.: It appears that at ■ the time of the transaction in suit, the defendant Boross was the president of the plaintiff corporation and also of the defendant, corporation, the International Import and Export Company; that he was instructed by the directors of the plaintiff to send a cablegram to a representative in" Munich, directing the latter to obtain a certain contract for it, but that the cablegram was changed before it was transmitted so as to direct the making of the contract in the name of the defendant corporation, with the result that the said representative did in fact procure such contract in the name of the latter corporation. It is charged in the complaint that the defendant Boross, in violation of his trust and duty to the plaintiff, caused such contract to be procured for the benefit of said defendant corporation instead of the plaintiff, for which wrongful act damages are asked. The order, vacated, limits. the examination to circumstances. relating to the change in the draft cablegram before it was transmitted. The defendant is charged with a _ violation of fiduciary duties, The plaintiff desires to examine him relative to a matter which he alone can explain. It is made plain that this examination is desired for the purpose of procuring testimony which it is necessary for the plaintiff to have to establish its case.' If ever a proper case was presented for the examination of a party before trial, this would seem to be such a case. The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs. Ingraham, P. J., Laughlin, Clarke and Scott, JJ., concurred. ' Order reversed, with ten' dollars costs and disbursements, and' motion denied, with ten dollars costs.