Heller, Hirsh & Company, Appellant, v. General Manufacturing Company, Respondent

Heller, Hirsh & Company, Appellant, v. General Manufacturing Company, Respondent. First Department, February 14, 1913. Discovery—examination, of party before trial — examination of nonresident defendants upon oral questions. Where in an action by an assignee of brokers to recover agreed commissions upon sales alleged to have been made by said brokers on account of defendant, the plaintiff must rely entirely upon evidence obtainable from the defendant’s officers and books, a motion to examine certain officers and a former sales agent of the defendant before trial upon oral questions should be granted, although they are in another State. The disposition of the courts is to permit such examinations where it appears that the elucidation of the truth, and consequently the ends of justice, will be facilitated thereby. Appeal by the plaintiff, Heller, Hirsh & Company, from so much of 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 New York on the 13th day of January, 1913, as denies the plaintiff’s motion to examine certain designated witnesses in Philadelphia upon oral questions. Nathan D. Stern, for the appellant. James B. Mackie, for the respondent [MAJORITY — Per Curiam:] Per Curiam: The action is by an assignee of brokers for agreed commissions upon garbage tankage alleged to have been sold by said brokers on account of defendant. The witnesses sought to be examined are officers of defendant and a former sales agent of defendant who may reasonably be expected to be a reluctant, if not an actually hostile, witness. In order to establish its cause of action the plaintiff must rely upon the evidence which can only be obtained from defendant, its officers and books. Under these circumstances if the defendant and its officers were within this jurisdiction there would not be a moment’s hesitation in permitting plaintiff to have'an examination before trial which would necessarily be oral. We do not think that plaintiff should be deprived of the perfectly legitimate advantage of such an examination merely because defendant and its officers are in another State. The recent trend of decisions has been in favor of relaxing to some extent the former rule ■ under which commissions to examine on oral questions were discountenanced. The dis. position of the courts at present is to permit such examinations where it appears that the elucidation of the truth,- and consequently the ends of justice, will be facilitated thereby. (Frounfelker v. D., L. & W. R. R. Co., 81 App. Div. 67; Wolf v. Union W. & P. Paper Co., 148 id. 623; Deery v. Byrne, 120 id. 6.) The order so far as appealed from should be reversed, with ten dollars costs and disbursements, and the motion granted as to the witnesseses specifically named in the notice of motion. Present — Ingraham, P. J., McLaughlin, Laughlin, Clarke and Scott, JJ. Order reversed, with ten dollars costs and disbursements, and motion granted as to witness specifically named in notice of motion.