Second Department, April, 1908. App. Div.] thirty days was given, so that the debt did not become due and payable until after the lien was filed, viz., on December 15th. It is therefore argued that as the lien was filed before the debt was due, and therefore could not truthfully state the amount claimed to be due, as there was nothing then due, it was prematurely filed, and therefore did not continne the lien of the debt. But the previous requirement that the notice of lien be filed, within 30 days after the debt is "contracted" must govern. By subsequently requiring the lienor to state the amount claimed to be "due", that word was not used in the sense of payable, or due and payable; it was not meant to require the postponement of the filing of notice of lien until within 30 days after the debt became due and payable. The effect of giving credit is only to postpone the beginning of a proceeding to enforce the lien, not the time of filing the notice of lien (Mott v. Lansing, 57 N. Y. 112). The judgment should be affirmed. WOODWARD, JENKS, HOOKER and MILLER, JJ., concurred. Judgment affirmed, with costs. DE LA VERGNE MACHINE COMPANY, Appellant, v. NEW YORK AND BROOKLYN BREWING COMPANY, Respondent, Impleaded with WILLIAMSBURGH TRUST COMPANY, Defendant. Second Department, April 24, 1908. Practice - stay - other action pending. An action to foreclose a mechanic's lien will be stayed pending the determination of a prior action brought by the defendant against the plaintiff to recover for a breach of the building contract when the issues in the two actions are the same. This, although the plaintiff in foreclosure has brought in an additional defendant, mortgagee of the lands, and asks that his lien be decreed to be prior to the mortgage, for that issue is merely incidental. APPEAL by the plaintiff, the De La Vergne Machine Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 4th day of November, 1907, directing that all proceedings in this action be stayed until the entry of judgment in an Second Department, April, 1908. [Vol. 125. action pending in the Supreme Court, brought by the New York and Brooklyn Brewing Company against the De La Vergne Machine Company. Faneuil D. S. Bethune, for the appellant. Thaddeus D. Kenneson, for the respondent. GAYNOR, J.: This is an action to foreclose the plaintiff's mechanic's lien on the defendant's land for work done and material furnished under a written contract between the parties for the erection of an icemaking plant on the defendant's land by the plaintiff for $8,500, of which $2,000 was paid. Before this action was begun this defendant brought an action against this plaintiff for damages for the breach of the said contract in the sum of $20,000, and issue was joined in it first. In each action the defendant alleges in defense the same matter which it pleads in the other as plaintiff. The court below had the discretion and the right in managing its calendars and regulating its order of business to put off or stay the trial of the second action - the one now here- until the first should be tried, and it was entirely orderly to do so, for if this defendant should prevail in his said action for damages against this plaintiff for failure to fulfill its contract, then this plaintiff could not recover in its action to foreclose its lien, the issue of performance being common and controlling to each action. The judgment would be res adjudicata of the lien action. It is a fact that there is an additional party to this action, but only because the plaintiff seeks to have its judgment of foreclosure made prior to a mortgage held by such defendant on the property. But that question is only incidental and will never be reached if judgment goes against this plaintiff in the said first action. There is no narrow technical rule that the issues and parties must be identical in all respects in each in order that the trial of one action may be stayed or postponed until after the trial of the other. The law looks to the substance of things, and if, as here, the issue in the action first brought is such that if the plaintiff prevails the judgment will require a dismissal of the other, it is orderly to try the first action first. An additional reason why the first one here App. Div.] Second Department, April, 1908. should have precedence is that it is a common law action and therefore secures a trial by jury of the controlling issue of fact of each action. The rule in respect to postponing a cause until after the trial of another is one of convenience and order in practice (Post v. Banks, 67 App. Div. 187), and not always one of strict right as is the case in pleas of former adjudication, and therefore the cases cited on this latter head while they may be instructive by analogy are not controlling. The order should be affirmed. WOODWARD, JENKS, HOOKER and RICH, JJ., concurred. Orden affirmed, with ten dollars costs and disbursements. JULIA DIEFENDORF, Respondent, Appellant, v. ALBERT O. FENN and Others, Appellants, Respondents, Inpleaded with HENDRICK S. HOLDEN and Others, Defendants. Second Department, April 24, 1908. Practice - deposition - examination of parties. As the right to take the deposition of parties and those not parties depends on different facts, their examination should not be allowed in the same order. When the taking of a party's deposition is only on the ground that it is material and necessary on the trial, it is not permitted until after issue joined. Neither parties nor witnesses may be examined for the purpose of preparing for trial. If it appear that a party can frame his pleading without an examination it will not be granted, and certainly not to prepare unnecessary allegations. CROSS-APPEALS by the defendants, Albert O. Fenn and others, and by the plaintiff, Julia Diefendorf, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 3d day of February, 1908, granting a motion to vacate an order for the examination of the defendants and certain others before trial and denying the said motion as to the defendant A. O. Fenn. The order was obtained after service of summons and before service of complaint. Second Department, April, 1908. [Vol. 125. Elbridge L. Adams [Walter Shaw Brewster with him on the brief], for the plaintiff. Walter S. Hubbell, for the defendants Fenn and others. P. M. French, for the defendants Sibley and Watson. GAYNOR, J.: The order was for the taking of the deposition of each of the defendants and of several others who are not defendants. It was vacated as to every one excepting the defendant Fenn on the affidavit of the plaintiff on which it was obtained. 1. As the right to take the deposition of parties, and that to take the deposition of persons who are not parties, depends on different facts, their examinations should not be mixed up in the same order. Section 870 of the Code of Civil Procedure provides for the examination of parties; section 871 for the examination of persons who are not parties; and then section 872 prescribes the facts which have to be presented by affidavit to get the order of examination of a party, and those which have to be so presented to get the order for the examination of persons who are not parties. There are certain facts common to both cases, and other facts which are not, but applicable to only one case or the other. 2. The order was obtained after the service of the summons, but before the complaint was served. The affidavit on which it was obtained states that the testimony of the defendants and all of the others named "is material and necessary for the prosecution of this action", and later that the information sought is "for the purpose of not only framing her complaint, but of preparing her case for trial and of prosecuting her action." Nor may these things be mixed up; they depend on different facts and conditions. When the taking of a deposition of a party is only on the ground that it is material and necessary on the trial, it is not permitted until after issue has been joined. It would be difficult, and sometimes impossible, to restrict such an examination to the issues until such issues have been joined, and there being no reason to take it before it may not be taken (Hutchinson v. Simpson, 73 App. Div. 520). Testimony may be taken for perpetuation in the case of old, sick or infirm persons, or App. Div.] Second Department, April, 1908. of persons about to leave the state, under the more lenient rules and conditions prescribed by the said sections of the Code; but such a case is not here. 3. The ground that the testimony is necessary for the purpose of preparing for trial does not exist. That is a loose phrase now and then used inadvertently. There is no provision of law for the examination of parties or witnesses on any such ground. 4. Nor does the statute provide for the taking of depositions to enable a party to frame his pleading, but that is nevertheless allowed in a case of necessity for it (Glenney v. Stedwell, 64 N. Y. 120). If it be apparent that the party is able to frame his pleading without such an examination, he should not be allowed to have it; and that a pleading may be on information and belief, or not verified, should be considered (Waitzfelder v. Moses Sons & Compапу, 120 App. Div. 144). Such examinations are vexatious when unnecessary. The present action is one for damages for deceit by false statements in respect of bonds sold to the plaintiff. This calls for a lean common law complaint, i. e., that the representations were made, that they were false, that the defendants knew them to be false, that they were made to deceive, and did deceive. The learned counsel for the plaintiff wants to allege in his complaint not only that the representations were false, but also that, on the contrary, the truth is this and that. This latter would be an unnecessary allegation, and therefore an examination to frame it should not be allowed. The order should be affirmed, except in so far as it denies the motion in respect of the defendant Fenn, and in that respect it should be reversed and the motion granted. WOODWARD, JENKS, HOOKER and RICH, JJ., concurred. Order modified by granting the motion in respect to the defendant Fenn, and as so modified affirmed, without costs. |