Oshinsky v. Gumberg
Appellate Division of the Supreme Court of the State of New York
Appeal by the defendant, Edward Gumberg, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 11th day of January, 1919, denying his motion to vacate an order for his examination before trial.
1Opinion of the Court
Jenks, P. J.:
For the certainty of procedure, we state a general rule that should obtain in this department upon applications for examination of an adverse party before trial.
The rule is this: The applicant can have the examination to prove his own case only.
This rule is subject to exceptions. (Herbage v. City of Utica, 109 N. Y. 81.) The exceptions cannot be classified; otherwise they would cease to be mere exceptions, in that they might be formulated as rules.
But I shall indicate certain kinds of cases wherein departures from the rule were justified. First. Litigations that presented a…
2Cases cited4 opinions
- Herbage v. . City of UticaNew York Court of Appeals · 1888
- Carter v. GoodNew York Supreme Court · 1890
- Griffen v. DavisAppellate Division of the Supreme Court of the State of New York · 1904
- Clark v. WilcklowNew York Supreme Court · 1894
3Cited by39 opinions
- Public National Bank v. National City BankNew York Court of Appeals · 1933
- Marine Trust Co. v. Nuway Devices, Inc.Appellate Division of the Supreme Court of the State of New York · 1923
- Johansen v. GrayAppellate Division of the Supreme Court of the State of New York · 1951
- Caskie v. International Railway Co.Appellate Division of the Supreme Court of the State of New York · 1930
- In re the Probate of the Will of WeisbergAppellate Division of the Supreme Court of the State of New York · 1955
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