Opinion
June, 1911.
Charles L. Greenhall (Wales F. Severance, of counsel), for appellant.
Joseph Rowan, for respondent.
A New York firm shipped plaintiff at St. Louis certain goods, which the plaintiff refused to accept, on the ground that they were not those purchased. The carrier thereupon, in accordance with law, delivered the same to the defendant's warehouse. Thereafter the plaintiff was compelled to pay the New York firm for the goods, as a result of litigation, and now seeks to recover the same from the defendant. The order for examination was obtained for the purpose of proving delivery to the defendant and retention by it.
The learned court below, in vacating the order for examination, states that plaintiff's affidavit indicates the lack of necessity for the examination, but does not say in what respect. The moving affidavit of the defendant, on the motion to vacate the order of examination, sets forth that, as the plaintiff knows the carrier who delivered to the defendant, the evidence may be elicited from that source. This seems to have been the ground on which the court below decided the motion. That the fact may be proved by other witnesses is, however, no longer a ground for refusing an examination of the adverse party before trial. Goldmark v. United States Electro-Galvanizing Co., 111 A.D. 529.
The order vacating the order of examination must be reversed, with ten dollars costs and disbursements, and the order of examination reinstated, the date for said examination to be fixed by the lower court.
SEABURY and GUY, JJ., concur.
Ordered accordingly.