Smith v. MacDonald
The Superior Court of New York City
William Smith sued Bobert Macdonald, in this court, for damages for an alleged breach of duty as a factor. Desiring to obtain an examination of the defendant, and of his books, to enable him to prove that defendant did not sell in a proper manner, and according to the usage of merchants, and with a proper discretion, and to learn the names of the parties concerned in the sales of the plaintiff’s goods, and the method employed in the disposition of said goods, and the…
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William Smith sued Bobert Macdonald, in this court, for damages for an alleged breach of duty as a factor. Desiring to obtain an examination of the defendant, and of his books, to enable him to prove that defendant did not sell in a proper manner, and according to the usage of merchants, and with a proper discretion, and to learn the names of the parties concerned in the sales of the plaintiff’s goods, and the method employed in the disposition of said goods, and the character of the sales, the plaintiff obtained an order for the examination of defendant, after the cause was at issue ; and…
1Opinion of the CourtSanford, J.
The defendant contends that the only mode in which his adversary can before trial secure evidence contained in the books of account kept by him or in documents of which he has the exclusive possession is by an application for “discovery” under section 388 of the Code and the requirements of Supreme Court Rules 18, 19 and 20. In other words, that the plain and express provisions of section 390 and 391,— which authorize compulsory examination of a party as a witness at the instance of the adverse party before trial, in the same manner and subject to the same rules of examination as any other…
2Cases cited3 opinions
- People ex rel. Valiente v. DyckmanThe Superior Court of New York City · 1862
- Edmonstone v. . HartshornNew York Court of Appeals · 1859
- Central National Bank v. ArthurThe Superior Court of New York City · 1870
3Cited by3 opinions
- Rosenbaum v. RiceNew York Supreme Court · 1901
- Bloom v. Pond's Extract Co.The Superior Court of New York City · 1891
- Fluchtwanger v. DessarNew York Supreme Court · 1889