Opinion
December 20, 1961
In an action to recover upon a mortgage note of $33,000 for moneys advanced on defendant's behalf at his request, and for other relief, in which defendant in his answer asserted five affirmative defenses based on payment, usury and the Statute of Limitations, the plaintiffs appeal from the following five orders of the Supreme Court, Kings County, dated September 29, 1961: The first order: An order which denied plaintiffs' motion to strike out defendant's affirmative defenses, pursuant to rules 103 and 104 of the Rules of Civil Practice; and which denied plaintiffs' motion for a change of venue to Tompkins County, pursuant to subdivision 2 of section 187 of the Civil Practice Act. The second order: An order which denied plaintiffs' motion for the discovery and inspection of the original of a certain letter, dated January 28, 1957, written by defendant to plaintiff Carlson and to the decedent, Joseph Seifert, which is now in defendant's possession; such denial being without prejudice to renewal of the motion after defendant's examination before trial. The third order: An order which granted defendant's motion to examine plaintiffs before trial; such examination to be held within 30 days after service of plaintiffs' bill of particulars. The fourth order: An order which granted defendant's motion to preclude plaintiffs for their failure to serve a bill of particulars, unless, within 10 days after service of a copy of the order, plaintiffs shall have served the bill in accordance with defendant's demand. The fifth order: An order which denied plaintiffs' motion to vacate certain items contained in defendant's demand for the bill of particulars. The first order is modified by striking out the second decretal paragraph denying plaintiffs' motion to change the venue to Tompkins County; and by substituting therefor a paragraph granting such motion to the extent of changing the venue to Sullivan County instead of Tompkins County. As so modified, the first order is affirmed, without costs. In view of the fact that defendant holds the office of President Justice of the Municipal Court of the City of New York, we believe that the protection of the courts' reputation from the slightest suspicion of bias requires a change of venue to a county beyond the territorial limits of the First and Second Judicial Departments (cf. Arkwright v. Steinbugler, 283 App. Div. 397). The second order is affirmed, without costs. It is clear from the moving papers that plaintiffs are concerned primarily in ascertaining how defendant came to possess the original of the letter written by him, rather than in examining and copying it. Hence, such question was properly left for inquiry, in the first instance, upon defendant's examination before trial. The third order is modified: (a) by adding after the first decretal paragraph, a decretal paragraph that such examination before trial of the plaintiffs by the defendant is granted upon the condition that plaintiffs shall have the right to first examine the defendant before trial pursuant to the notice theretofore served by plaintiffs, except that plaintiffs' examination of the defendant shall not proceed until plaintiffs shall have served their bill of particulars; and (b) by striking out the present second decretal paragraph providing for the time and place of the plaintiffs' examination before trial, and substituting in lieu thereof a paragraph directing all the parties to appear for examination before trial at Special Term, Part II, Kings County Supreme Court, in Brooklyn, on such date or dates and hours as may be mutually agreed by the parties, or, failing such agreement, upon 10 days' written notice given by either party after plaintiffs' bill of particulars shall have been served. As so modified, the third order is affirmed, without costs. Under the circumstances here, it is our opinion that the priority of examination should accord with the priority of the service of the notice, and since plaintiffs served their notice first they should be permitted to examine the defendant before he is permitted to examine them (Civ. Prac. Act, § 121-a; Desiderio v. Gabrielli, 284 App. Div. 976). The fourth order is affirmed, without costs (cf. Tomasino v. Prudential Westchester Corp., 1 A.D.2d 781). Plaintiffs' time to serve the bill of particulars is extended until 15 days after entry of the order hereon. The fifth order is affirmed, without costs. Plaintiffs' motion to vacate the items in defendant's demand for the bill of particulars was not made within five days after receipt of such demand, as required by the rules (Rules Civ. Prac., rule 115, par. [a]). Nolan, P.J., Beldock, Christ, Pette and Brennan, JJ., concur.