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In the Matter of the Application of Sophie D. Schoeller.

This language finds precise application in every particular to the facts of this case, and, if it be sound in law, is decisive of this appeal in favor of the respondent. There, as here, an action had been brought by a party to recover damages, founded upon an accident, against a supposed owner of the mine; an answer had been interposed denying such ownership, or liability for the injuries, and the sole question, therefore, which the examination sought to obtain was the person or corporation engaged in operating the mine at the time of the accident. The sole purpose of this examination is to discover the person or corporation who was operating the business of the Century Express at the time the injuries were inflicted.

A like doctrine was held in Matter of Weil (25 App. Div. 173), where the Appellate Division of the Second Department decided that an examination was proper before service of the complaint in a case where an action was to be brought to enforce a claim for work done for a newspaper called the Hebrew Standard. Prior to the application, suit had been brought against the editor of the newspaper as its proprietor, and the defendant having interposed an answer denying that he was the party responsible, such action was discontinued and another action brought against the newspaper as a corporation, and the editor was served with the summons and complaint as a director. To this action answer was interposed denying that the corporation was the contracting party, and, thereupon, the second action was discontinued. Application was then made to examine the editor for the purpose of discovering who was the proper person against whom to bring the action. Order issued for the examination of the editor, and, upon appeal, such order was affirmed.

In Long Island Bottlers' Union v. Bottling and Brewers' Pro. Ass'n (65 App. Div. 459) the same court denied an application, holding that an examination of witnesses to enable the plaintiff to frame a complaint in an action not

In the Matter of the Application of Sophie D. Schoeller.

yet commenced could not be sustained. The Weil case (supra) was not cited in the opinion, nor commented upon. We are not called upon to attempt reconciliation of these two cases. The last decided case is based upon certain authorities in this department to be hereafter noticed.

It is evident that the cases to which we have called attention furnish abundant authority for the support of this order. It is claimed, however, that the cases in this departmentMatter of Anthony & Co. (42 App. Div. 66) and Matter of White (44 App. Div. 119)-are opposed to this view of the law. It is not to be denied but that there are expressions in these cases and in the authorities which they cite which deny right in the court to grant the order the subject of this appeal. In Matter of Anthony & Co. (supra), the decision is made to rest quite largely upon Matter of Bryan (3 Abb. N. C. 289). In that case, however, the moving affidavit upon which the order was based did not show any cause of action in favor of the plaintiff against anybody, known or unknown, while the witness sought to be examined in that case bore no relation whatever either to the proposed defendant or to the proposed plaintiff, and it was not pretended that the witness could by any possibility become a party to the action. It was held that a witness as such could not be examined for the purpose of enabling a plaintiff to frame a complaint. The case did not determine that a person whose examination was sought under such circumstances as tended to show that he would be the party defendant was not a proper person to examine, as the case did not involve such question. The main ground for the decision proceeded from the fact that no cause of action was shown by the affidavit to exist in the plaintiff; and upon this ground the decision was unanswerable. Reliance was also placed in Matter of Anthony & Co. upon De Lown v. De Lima (66 How. Pr. 287). This was a Special Term decision by Mr. Justice Ingraham. It appeared clearly in that case that the purpose of the examination was to discover if the plain

In the Matter of the Application of Sophie D. Schoeller.

tiff had a cause of action. The action was for slander, and the attempt was to find out the exact language used. Clearly, therefore, no cause of action was shown to exist in favor of the plaintiff. The opinion contains the statement that before an examination will be granted "it must appear that the plaintiff has a cause of action against the defendant." This language is laid hold of in support of a holding that the proposed defendant must be definitely and not tentatively named in the affidavit. It may be said that such construction of the language was not permissible as in that case, as we have observed, no cause of action was shown to exist either in favor of the applicant or against the defendant. The expression had application to the facts of that case, and nothing else, otherwise it was obiter.

Muller v. Levy (52 Hun, 123) was also cited in support of the last contention. The opinion in that case opens with the statement, "When a plaintiff, for the purpose of framing his complaint, obtains an order for the examination of a defendant before trial, he must establish by affidavit the existence of a cause of action in his behalf. * The affidavit upon which the order for the examination of the defendant Bernard Levy was granted does not state facts sufficient to show that a cause of action exists in favor of the plaintiff." And at the close of the opinion it is stated, "The application of the plaintiff to examine the defendant is fairly subject to the criticism that it is merely an attempt not to obtain information for the better statement of a known cause of action, but to find out whether he really has any cause of action at all. A party cannot be examined for this purpose." It is clearly evident, therefore, that neither of the last two cases cited, nor the Matter of Bryan (supra), furnish authority for the doctrine announced in Matter of Anthony. In each one of the three cases there was no cause of action stated in the moving papers in favor of the moving party, and under such circumstances it is conceded that a case for an examination is not made. The limitation which is placed upon the

In the Matter of the Application of Sophie D. Schoeller.

Merchants' Nat. Bank v. Sheehan (supra), in the Matter of Anthony & Co. (supra), I do not think is warranted. The effect of the decision seems to be that an examination may be had at the instance of one party of his adversary when it is contemplated by the moving party that his adversary is expected to be made a party. The affidavit in this case states that the moving party expects to bring an action against the Metropolitan Express Company, and it clearly appears that the person sought to be examined is such person as may be made a defendant. In the Matter of Anthony & Co. (supra), a cause of action was stated in favor of the plaintiff therein, so the case is authority for holding that unless the defendant is definitely named the examination may not be had; but with all deference to the learned judge who wrote and the court which decided that case, I am of opinion that its doctrine is not sustained by the authorities cited therein and that it is opposed to the current of authority. Matter of White (supra) was an application to examine a witness for the purpose of perpetuating his testimony. The court, however, held that it was a mere cover to obtain the name of the party who should be made the defendant, and, therefore, upon the authority of Matter of Anthony & Co. (supra) the application was denied. In that case it was not contended that the witness sought to be examined was expected to be made a party. Neither this case nor the Long Island Bottlers v. Bottling Brewers (supra) adds any strength to the Matter of Anthony & Co. (supra), as they all rest upon it.

I am of opinion that an examination may be had of a person against whom it is contemplated that an action may be brought, or of a witness who is shown to be possessed of information necessary and essential for the more complete statement of a cause of action shown to exist in the moving party, whether the information essential to be obtained relates to substantive matter required to be stated in the complaint or of the name of the defendant against whom

Francis P. Burke and Willard S. Brown v. Benjamin T. Rhoads, Jr.

the cause of action exists. The present case exemplifies the necessity for such holding, as it is evident that the party can only be discovered by successive actions or by uniting them all in one action and thereby subjecting the party to the payment of bills of costs for the misfortune of including the wrong parties. There is little danger of any abuse of the process of the court under such circumstances. It follows that the order should be affirmed, with $10 costs and disbursements.

O'BRIEN, J., concurs.



§ 544.

Lloyds Fire Insurance Policy-Limitation of Liability-Answer— Defense.

The clause in the Lloyds fire insurance policy limiting the liability of any underwriter, upon all policies issued or to be issued, is not void as against public policy and constitutes a valid defense to an action against an underwriter brought after the recovery of a judgment against the attorney-in-fact. Section 544 of the Code of Civil Procedure is sufficiently broad in its terms to permit a defendant to set up as a defense in his answer

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