Opinion
December 7, 1906.
Frederic R. Kellogg, for the appellant.
Sidney Rosenbaum, for the respondents.
The order for examination, which the order appealed from refused to vacate, is addressed to Frank N. Doubleday, president, and Samuel A. Everitt, treasurer, of the defendant corporation. It does not purport to require the company to be examined, but runs against its officers individually. It has recently been decided by this court that there is no authority for such an examination of an officer of a corporation as such, apart from the examination of the corporation itself. ( Jacobs v. Mexican Sugar Refining Co., Ltd., No. 2, 112 App. Div. 658.) For this reason alone the motion to vacate should have been granted, and the order appealed from must be reversed. Apart from this consideration we think that the motion should have been granted on the merits. It was made quite clearly to appear that the real purpose of the order was to obtain an inspection of defendant's papers and records, under the guise of an examination of its officers, and that the officers sought to be examined had never had any personal knowledge concerning these records, and had, therefore, no memory to be "refreshed" by consulting them. While this court is committed to the doctrine that the provisions of law respecting the examination of parties before trial should be construed and applied with liberality in the interest of justice, we are not disposed to permit the procedure in this regard to be used for purposes not warranted by the Code, which prescribes a quite different method of procedure when a party is entitled to and desires an inspection of his opponent's books and papers.
The order should be reversed, with ten dollars costs, and motion granted, with ten dollars costs.
PATTERSON, INGRAHAM, LAUGHLIN and CLARKE, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. Order filed.