Donnelly v. Anderson Brown & Co.
District Court, S.D. New York
At Eaw. Action by James Donnelly against Anderson Brown & Co., Inc., James MacFadyean, and William C. Brower. On motion by defendants to vacate order for examination, of defendants. The plaintiff obtained an order to examine the defendants in an action at law for the purpose of framing his complaint. H'e relied upon the provisions of article 1, title 3, of chapter 9 of the New York Code o£ Civil Procedure, which gives such a right.
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At Eaw. Action by James Donnelly against Anderson Brown & Co., Inc., James MacFadyean, and William C. Brower. On motion by defendants to vacate order for examination, of defendants. The plaintiff obtained an order to examine the defendants in an action at law for the purpose of framing his complaint. H'e relied upon the provisions of article 1, title 3, of chapter 9 of the New York Code o£ Civil Procedure, which gives such a right. The chief allegations of his affidavit are stated in the opinion below. The defendants moved on the papers to vacate the order.
1Opinion of the Court
LEARNED HAND, District Judge.
[1] The power of this court to grant such an examination stands directly upon Anderson v. Mackay (C. C.) 46 Fed. 105, which has been neither qualified nor reversed since it was decided. Indeed, Frescole v. Lancaster (C. C.) 70 Fed. 337, must be taken as founded upon it and in accord with its principle. Ex parte Fisk, 113 U. S. 713, 5 Sup. Ct. 724, 28 L. Ed. 1117, is .not contra, either on the facts or on the ratio decidendi. An examination to frame a pleading is quite another thing from a perpetuation of testimony to be used in proof of the issues. Nor does…
2Cases cited7 opinions
- Ex Parte FISKSupreme Court of the United States · 1885
- Carpenter v. WinnSupreme Court of the United States · 1911
- Waitzfelder v. A. Moses Sons & Co.Appellate Division of the Supreme Court of the State of New York · 1907
- In re GardnerAppellate Division of the Supreme Court of the State of New York · 1908
- Thompson v. HaighAppellate Division of the Supreme Court of the State of New York · 1909
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3Cited by5 opinions
- Gimenes v. New York & Porto Rico S. S. Co.District Court, S.D. New York · 1929
- Heister v. Lehigh & N. E. R.District Court, S.D. New York · 1931
- Bailey v. Texas Co.District Court, E.D. New York · 1929
- Kornblum v. Southern Pac. Co.District Court, E.D. New York · 1929
- Disalvo v. American Brass Co.District Court, W.D. New York · 1937