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Cardy v. Cardy

Appellate Division of the Supreme Court of New York, First Department
Oct 5, 1961
14 A.D.2d 735 (N.Y. App. Div. 1961)

Opinion

October 5, 1961


Order entered on April 4, 1961, denying defendant's motion for separate prior trial of the issues of res judicata and Statute of Limitations raised by the affirmative defenses, unanimously reversed on the law and the facts and in the exercise of discretion, and motion granted, with $20 costs and disbursements to defendant-appellant. Order entered March 13, 1961, granting plaintiff's motion for examination before trial of defendant on open commission and production of books, records and papers, modified, on the law and the facts and in the exercise of discretion, to the extent of requiring the examination to be limited initially to the issues raised by said affirmative defenses and of permitting it to be continued thereafter upon other issues raised by the pleadings only to the extent that it will not hinder expeditious separate prior trial of the issues raised by the affirmative defenses, and otherwise affirmed, with $20 costs and disbursements to plaintiff-respondent. Resettled order entered March 24, 1961, granting plaintiff's motion for examination of certain witnesses on open commission, reversed, on the law and the facts and in the exercise of discretion, with $20 costs and disbursements to defendant-appellant, but with leave to plaintiff to make further application for the examination of such witnesses upon the following conditions: (a) witnesses whose testimony is desired primarily because of their custody or control of public or private records or other writings shall be examined only on written interrogatories; (b) an open commission shall be issued with respect to other witnesses only upon a showing of necessity for oral testimony by such witnesses; (c) the expenses of the examinations pursuant to such commission shall be borne by the respective parties in the first instance and taxed as disbursements to the prevailing party, provided, however, that if the court determines that the testimony of any witness will be cumulative the expenses of both parties pertaining to the examination of such witness shall be borne by plaintiff in the first instance and shall be taxed as disbursements to her only if she is the prevailing party; and (d) in the case of every witness, plaintiff shall show either (1) that the testimony of such witness is material and necessary to a determination of the issues raised by said affirmative defenses; or (2) before plaintiff may take the testimony of such witness upon other issues raised by the pleadings she must show that all pretrial examinations on the issues raised by the affirmative defenses have been concluded, that the taking of such testimony will not hinder expeditious separate prior trial of such issues, and that such testimony is material and necessary to a determination of other issues raised by the pleadings. Plaintiff, a woman now in the middle seventies, brought this action against her former husband in May, 1955. After several appeals prior to answer ( 2 A.D.2d 964; 7 A.D.2d 721, affd. 6 N.Y.2d 943), issue was joined in January, 1959. The motions with which the present appeals are concerned come after two years' quiescence. In the circumstances, and mindful that the issues raised by the affirmative defenses relate to matters of foreign law which should lend themselves to comparatively prompt disposition, we are of opinion that a separate prior trial of those issues will promote the interest of both parties. To this end we have deemed it orderly to confine the pretrial testimony to such issues in the first instance. However, plaintiff's demand that all pretrial testimony be taken by open commission — in view of the fact that apart from defendant 82 witnesses are involved — is unwarranted. Much of the requested testimony relates merely to the formal execution or surface content of records and documents and can be elicited by interrogatories; some is within so narrow a range as to be similarly elicited; some is of doubtful materiality on the present showing; some appears repetitious. Clearly the blanket order directing the issuance of the commission cannot be sustained; on the other hand, plaintiff should have a further opportunity to explain the need and justify the method of each examination proposed. We assume that the parties will now proceed with reasonable dispatch. Settle order on notice.

Concur — Botein, P.J., Breitel, Rabin, Valente and McNally, JJ.


Summaries of

Cardy v. Cardy

Appellate Division of the Supreme Court of New York, First Department
Oct 5, 1961
14 A.D.2d 735 (N.Y. App. Div. 1961)
Case details for

Cardy v. Cardy

Case Details

Full title:HILDA M. CARDY, Respondent, v. VERNON G. CARDY, Appellant

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Oct 5, 1961

Citations

14 A.D.2d 735 (N.Y. App. Div. 1961)

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