George P. Waitzfelder, Appellant, v. A. Moses Sons & Company, a Domestic Corporation, Impleaded with Aaron Moses and Others, Respondents

George P. Waitzfelder, Appellant, v. A. Moses Sons & Company, a Domestic Corporation, Impleaded with Aaron Moses and Others, Respondents. First Department, June 7, 1907. Deposition — examination to frame answer — requirements of moving papers. ' " Notwithstanding the liberal rule as to the examination of parties before trial, the requirement that the moving affidavit specify facts and circumstances which" show .that the examination is material- and necessary has hot in any way been weakened or abrogated. - Thus-, when a party moving for an examination before trial solely for the purpose of framing his answer and not intending to use the testimony at trial makes it clear by his affidavit and by the complaint in a former action that, he intends to defend upon the ground that the nóte sued upon was usurious, he is not entitled to an examination to frame; the answer, for the issue may he •tendered by allegations upon information and belief, or by denials.of, knowledge or information as to the bona fide possession of the plaintiff. Appeal by the plaintiff, George P. Waitzf elder, 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 New. York on the 18th day of April, 190T, .denying the plaintiff’s motion to vacate a prior order which directed the plaintiff to appear before a referee for examination in order to -enable the respondents, to frame their answer to the amended complaint: . Branch P. Kerfoot of counsel [Paul M. Herzog, attorney], for the appellant. William J. Bolger of counsel [Edward W. Murphy, attorney], for the respondents. [MAJORITY — Clarke, J.:] Clarke, J.: The action is brought to recover $10,000 on a nóte alleged to-have been made by the copartnership of A. Moses Sons & Co., ■ indorsed by the defendants for value to the order of one Baron and before maturity.indorsed and transferred by the said Baron to the plaintiff,. The order for examination- provides that the plaintiff be examined as to the facts and. circumstances which are within his knowledge concerning his ownership of the nóte in suit and of the facts and circumstances surrounding the delivery of the note to his assignor in order to enable the defendants to frame an answer. The affidavit upon which the order for examination was granted was made by one of the defendants and averred that'prior to the service of the amended complaint herein, and as deponent is informed and believes, prior to the transfer of the note in suit herein to the plaintiff, the defendants commenced an action against the plaintiff and Baron, his assignor, in which they sued to -recover the said note together with the interest which had been paid thereon, upon the ground that said note was given in pursuance of an usurious agreement, and that usurious interest had been paid thereon for three years, and that prior to the commencement of this action, and as deponent is informed and believes, prior to the" transfer of the note in suit to the plaintiff, this deponent' commenced an action against the said Baron to recover the sum of $25,000, which amount deponent claims the said Baron was indebted to him, and deponent verily believes that the'transfer of said note by the said Baron to the said plaintiff was made to avoid liability to deponent thereon and to enable the plaintiff to allege that he was an innocent holder for value thereof before maturity. He also avers that at the time of the execution and delivery of said note he "was the husband of a daughter of Baron, the payee named in said note; that subsequent to the making and delivery of the note he and his wife were divorced and that his said former wife has since married the plaintiff herein that while dejxment and ■ his said former wife were living together, the plaintiff was a constant and frequent visitor at the house of deponent and was regarded by deponent as an intimate friend and that he has frequently' discussed with the said plaintiff the circumstances of the making and giving of the note in suit, its usurious character and the reasons for the'making of the note, and said plaintiff was, as deponent fully believes, fully cognizant of all the facts and circumstances in connection therewith. He then alleges that it will be impossible for liim to frame his answer without an examination of the plaintiff -and asks that he be required to answer such questions as will tend to inform these defendants of the circumstances surrounding the assignment of the note in suit to him and concerning his ownership. There is no statement in the moving papers that the defendants intend- to-use the •'evidence so obtained upon the trial, the sole reason given for the examination ■ being to enable them'to frame an answer. Notwithstanding' the liberal rule as to the examination of ' parties before trial recently ■ established in this department' by Goldmark v. U. S. Electro-Galvanizing Co. (111 App. Div. 526),- and the other cases in accordance therewith, the -rule as laid down by subdivision 4 of-section 872 of the Code of Civil Proced-. ' ure-and rule 82 of the General Buies of Practice, that 'the ■ affidavit shall specify the■ fáfcts -and circumstances which show that the'examination is material and necessary, has.not in any way been weakened or. abrogated. The moving papers.in the case at bar. affirmatively establish that the examination of thp plaintiff, is-not necessary to enable-the defendants to frame their answer. The moving papers show that.the defendants have now all the information necessary to enable'them to tender the issues,'for the ascertainment, of. which they claim the examination of the plaintiff is necessary. In the complaint- which all three defendants verified in the action which they brought to declare the note sued on here usurious, they have alleged as a matter within their own knowledge that the plaintiff herein knew of the facts and circumstances which they claim made that note invalid. And irrespective of thájt, their mov-i,Ug affidavit, discloses that they can present their issues at least upon ; information and belief or can put the bona, 'fides'of the possession •;-of the note in the hands of the plaintiff in issue by denying khowlny.edge or information sufficient to form a belief in regard thereto. v;; juchan.issue, being raised by the answer, the burden will be put .syS.upgn. .tile, plaintiff to establish that He -is a holder in good faith sj;and-.before maturity. ' , • While we intend to adhere to the policy frequently expressed of -allowing examinations before trial in the interests of justice within -what we believe to have been the original intent and spirit of the provisions of the Code, it is our opinion that this order was improperly .gi*anted and-it-should, therefore, be reversed, with ten dollars costs and disbursements, and the motion denied, with tendollars costs. Ingraham, Lahghlin, Scott and Lambert, J.T., concurred. ■ Order reversed, with ten dollars costs and disbursements, and motion, denied, with'ten dollars, costs, •