Opinion
February 18, 1910.
George A. Strong, for the appellant.
C. Arthur Levy, for the respondent.
Appeal from an order denying a motion to vacate an order for examination before trial. The action is upon a policy of fire insurance issued by defendant to the F.P. Bhumgara Company, loss, if any, payable to plaintiff. It is alleged that the articles insured were destroyed or damaged by fire and that after the loss and before the commencement of the action the Bhumgara Company for a valuable consideration assigned the policy and all moneys due and payable thereunder to the plaintiff. The answer, in addition to the usual denials designed to put the plaintiff to its proofs, sets up a special defense that the Bhumgara Company and plaintiff made false and fraudulent representations to defendant respecting the loss which was, as it is said, inappreciable. It appears by affidavit that the defendant has accused N.F. Bhumgara, the president of the Bhumgara Company, with having made false and fraudulent proofs of loss, and has caused him to be arrested and indicted upon that charge. The order sought to be vacated provides for the examination of plaintiff, as a party to the action, through George B. Bruce-Webster, described as its agent for the State of New York, and of the F.P. Bhumgara Company, a person not a party to the action, through its president, N.F. Bhumgara. It is irregular, if not actually improper, to include in a single order a provision for the examination of a party to the action and one for the examination of a person not a party. While there are certain facts necessary to be shown which are common to applications for both examinations, there are other facts which are not common, but are applicable to only one case or to the other. ( Diefendorf v. Fenn, 125 App. Div. 651.)
There appears to be neither authority nor propriety for examining a corporation, as such, before trial as a person, not a party. The word "party," as used in section 870 and the following sections of the Code of Civil Procedure, means a party to the action and no one else. ( Seeley v. Clark, 78 N.Y. 220.) Section 870 provides for the examination of a party, which includes a corporation, if it be a party to the action. Section 871 provides for the examination of a "person not a party" to the action. That section and the following one prescribing the procedure to be followed in procuring an order for and conducting an examination show very clearly that the word "person" is used as indicating a witness — a person who can testify, as, of course, a corporation cannot. Subdivision 7 of section 872, the only subdivision referring in terms to the examination of a corporation, refers to a case where the "party" sought to be examined is a corporation. But, even if a corporation could be examined as a "person not a party," or if the order could be treated (as it cannot) as one for the examination of N.F. Bhumgara personally, it would still be unauthorized. To justify an order for the examination of a person not a party, it is necessary that it be made to appear that he is about to depart from the State or that he is so sick or infirm as to afford reasonable ground to believe that he will not be able to attend the trial, or that any other special circumstances exist which render it proper that he should be examined. (§ 872, subd. 5.) None of these things are made to appear in the present case. We are referred to Chittenden v. San Domingo Imp. Co. ( 132 App. Div. 169), wherein we allowed the examination of persons not parties because we found in the facts of the case "special circumstances" which justified such an order. It is manifest that whether or not such "special circumstances" exist in any case depends upon the facts of that particular case. The facts in the Chittenden case bore no possible resemblance to the facts of this case. The plaintiff was suing for the value of services rendered to defendant by her deceased husband, of which she could have, in the nature of things, no personal knowledge, and of which the persons to be examined, who had been the active officers of the defendant when the services were rendered, presumptively had such knowledge, and if the case had come to trial she would have had to call them as witnesses. The defendant required her to give a bill of particulars, and thus by its own action created a situation which could be met only by examining those who knew the facts. It was this requirement of the defendant and the situation thereby created, together with the other facts of the case, which established the "special circumstances" justifying the order for examination. Nothing of that sort appears here. As to the examination of the plaintiff, it appears that the individual required to be examined has ceased to be an officer. The plaintiff cannot, therefore, be examined through him. And, even if it could, it does not appear that he could testify to any material fact. If Bhumgara committed a fraud which vitiated any claim under the policy, it is of no moment whether plaintiff or its officers knew or did not know of that fraud. The plaintiff is a mere appointee of the insured and must stand or fall by the rights of the assured. ( Grosvenor v. Atlantic Fire Ins. Co. of Brooklyn, 17 N.Y. 391; Moore v. H.F. Ins. Co., 141 id. 219.) From every point of view, therefore, the order for examination was unauthorized and should have been vacated.
The order should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.
INGRAHAM, P.J., LAUGHLIN, CLARKE and MILLER, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.