December 19, 1924.
Bonynge Barker, for the plaintiff.
Barry, Wainwright, Thacher Symmers, for the defendant.
Plaintiff sues as assignee of a Russian corporation. The assignment bears a corporate acknowledgment. The defendant pleads that the charter of the Russian company renders invalid an assignment without a valuable consideration and that no consideration passed; that under the organic law the managing director who executed the assignment was without authority to execute the same unless authorized by resolution and that no such resolution was passed; and that the corporation was unauthorized to execute the assignment outside of Russia and that the paper was in fact signed here. Defendant seeks to examine Andre, the managing director, to support these defenses. Plaintiff argues that since it has the burden of proving a valid assignment, no examination can be granted. This case presents a highly special situation. Apparently the plaintiff's prima facie proof will be the acknowledged assignment. To meet this the defendant is practically compelled to elicit its testimony from the plaintiff's manager, the facts being peculiarly within his knowledge. This application, therefore, comes within the exception to the general rule recognized in Schweinburg v. Altman ( 131 A.D. 795), Marine Trust Co. v. Nuway Devices, Inc. (204 id. 752) and discussed in Carmody's New York Practice (pp. 360, 361).
The motion to examine is granted to the extent indicated.