Hadley v. Fowler
New York Court of Common Pleas
Motion to vacate an order for the examination of the plaintiff, granted at the instance of the defendants, before issue joined.
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Motion to vacate an order for the examination of the plaintiff, granted at the instance of the defendants, before issue joined. This action was brought by Amos K. Hadley, plaintiff, against Jonathan 0. Fowler and John A. Dongan, defendants, as sureties, to recover from them a balance alleged to be due him on a certain judgment recovered by him in this court against one Ayres, the defendants herein having executed the undertaking given by said Ayres on an appeal taken by him to the court of appeals, where the judgment of this court was affirmed. After the summons and complaint in this action…
1Opinion of the CourtLoew, J.
It was held by the general term of the superior court, in the case of McVickar v. Greenleaf (1 Abb. Pr. N. S., 452; S. C., 4 Robt, 657), that a party to an action could be examined at the instance of the adverse party, under section 391 of the Code, immediately on the commencement of the action, and before issue joined.
That decision was subsequently followed at the special term of that court in two. other reported cases (Fullerton v. Gaylord, 7 Robt, 559; Duffy v. Lynch, 36 How. Pr., 509).
A different view was, however, taken in Bell v. Richmond (7 Abb. Pr. N. S. 452; S. C., 50 Barb., 571),…
2Cases cited2 opinions
- Bell v. RichmondNew York Supreme Court · 1868
- Duffy v. LynchThe Superior Court of New York City · 1869