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First Department, May, 1908.

James K. Symmers, for the appellant.

C. F. Goddard, for the respondent.

PER CURIAM:

[Vol. 125.

The plaintiff, for the purpose of framing his complaint, seeks to obtain a discovery of an instrument which it is alleged is a libel. The effect of granting this application would compel the defendant to furnish evidence which might be used against him in a criminal prosecution. He should not be compelled to furnish such information where a discovery is applied for, as the opposition to the motion is the only opportunity that the party has to object to being compelled to furnish such evidence, and he is entitled then to take the objection. Where a party is required to be examined he can take the objection when the questions are asked; and in such a case the party is required to claim his right to refuse to answer when the deposition is taken, but the rule settled in such cases does not apply when there is no other opportunity to take the objection than in opposing the application, as in the case of a discovery.

The order should be reversed, with ten dollars costs and disbursements, and the motion denied.

Present - INGRAHAM, MCLAUGHLIN, CLARKE, HOUGHTON and SCOTT, JJ.

Order reversed, with ten dollars costs and disbursements, and motion denied.

STANDARD FINANCE COMPANY, Respondent, v. FRANK C. HOLLINS, Appellant.

First Department, May 29, 1908.

Appeal calendar.

An order placing a cause on a particular calendar is not appealable, as no substantial right is affected.

APPEAL by the defendant, Frank C. Hollins, from an order of the Supreme Court, made at the New York Trial Term and entered in

App. Div.]

First Department, May, 1908.

the office of the clerk of the county of New York on the 23d day of April, 1908, denying the defendant's motion to strike the above cause from calendar No. 3.

Paris S. Russell, for the appellant.

Irving E. Ziegler, for the respondent.

PER CURIAM:

The division of the calendars of the court is for the convenience of the court in the proper dispatch of business. The question as to the calendar on which a case shall be placed affects no substantial right, and for that reason the order is not appealable.

The appeal must, therefore, be dismissed, with ten dollars costs and disbursements.

Present SCOTT, JJ.

INGRAHAM, MCLAUGHLIN, CLARKE, HOUGHTON and

Appeal dismissed, with ten dollars costs and disbursements.

PAULINE ROSENTHAL, as Administratrix, etc., of HARRIS ROSENTHAL, Deceased, Respondent, v. CHARLES JACKSON and ISIDORE JACKSON, as Trustees of Certain Trusts Created by MENDEL ROSENTHAL, Deceased, Appellants.

First Department May 29, 1908.

Deposition - examination to frame complaint - accounting.

Where a plaintiff has sufficient knowledge to frame a complaint to compel trustees to account, she is not entitled to an examination for the purpose of determining whether she has a cause of action before serving her complaint. MCLAUGHLIN, J., dissented, with memorandum.

APPEAL by the defendants, Charles Jackson and another, as trustees, etc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 27th day of March, 1908, denying First Department, May, 1908. [Vol. 125, App Div.] the defendants' motion to vacate a prior order for their examination before trial to enable the plaintiff to frame her complaint.

Jerome C. Jackson, for the appellants.

Harold Nathan, for the respondent.

PER CURIAM:

From the papers it appears that the plaintiff has sufficient knowledge to frame a complaint to compel the defendants to account for such moneys as they had received and for which they were accountable to the plaintiff's testator. She is not entitled to an examination of the defendants before serving her complaint for the purpose of determining whether she has a cause of action.

The order appealed from is, therefore, reversed, with ten dollars costs and disbursements, and the motion to vacate the order for the examination of the defendants granted.

Present - INGRAHAM, MCLAUGHLIN, CLARKE, HOUGHTON and Scott, JJ.

MCLAUGHLIN, J. (dissenting) :

I dissent on the ground that the plaintiff was entitled to examine the defendants to ascertain the terms of the trust under which it is conceded that they held certain moneys, and of which, according to the moving papers, she has no knowledge.

Order reversed, with ten dollars costs and disbursements, and motion granted.

CASES REPORTED WITH BRIEF SYLLABI

AND

DECISIONS HANDED DOWN WITHOUT

OPINION.

FOURTH DEPARTMENT, MARCH, 1908.

BUFFALO GRAIN COMPANY, Respondent, v. GEORGE F. SOWERBY, as President of THE WESTERN ELEVATING ASSOCIATION and GEORGE F. SOWERBY COMPANY, Appellant, Impleaded with ALBERT J. WHEELER and Others. Negligence-bailment-loss of grain stored in elevator-charge as to liability of owner of elevator and its lessee, who was the bailee.

Appeal from a judgment of the Supreme Court, entered in the Erie county clerk's office on the 23d day of March, 1907, and also from an order entered on the 28th day of March, 1907, denying a motion for a new trial made upon the minutes.

Judgment and order affirmed, with costs. All concurred, except McLennan, P. J., and Kruse, J., who dissented in a memorandum by Kruse, J.

Order granting additional allowance reversed, with ten dollars costs. All concurred.

KRUSE, J. (dissenting): I am unable to concur in the decision about to be made, affirming the judgment and order appealed from. The action is brought to recover the value of certain grain owned by the plaintiff and stored in an elevator, which collapsed and the grain was destroyed. The defendants Western Elevating Association and George F. Sowerby Company in form issued the warehouse receipt for the grain, and the defendants Wheeler were the owners of the elevator. The complaint alleges that the defendants received the grain, and that the defendants, and each of them, agreed to redeliver it upon demand; that the elevator was of defective construction and insecure, and charges each of the defendants with the same negligent acts regarding the defective construction and the unsafe condition of the elevator. In submitting the case to the jury the learned trial judge placed the liability of each of the defendants upon precisely the same ground. He was requested to charge the jury that the defendants Wheeler, the owners of the elevator, were not warehousemen as regards the plaintiff, but he refused so to charge. The theory upon which the case was tried and submitted was that all of the defendants were warehousemen and equally responsible for the defective construction and insecure condition of the elevator and the safekeeping of the grain. After deliberating for some time, the jury returned into court and inquired whether, if a verdict was found for the plaintiff, it would be directly against the defendants Wheeler or against the

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[Vol. 125.

Fourth Department, March, 1908. "elevator pool," as the foreman characterized the other defendants. The jury were told in effect that the verdict must be against all the defendants. The jury again retired, and were out all night without agreeing upon a verdict. In the morning they were sent for by the presiding justice and instructed, without otherwise modifying his charge, that they might bring in a verdict against any or all of the defendants, to which the defendants excepted, and very soon thereafter the jury rendered a verdict of no cause of action in favor of the defendants Wheeler and a verdict for the full value of the grain against the other defendants. The effect of the verdict was to negative all acts of negligence charged against the defendants Whceler. If that was correct it is difficult to perceive upon what ground the other defendants could be held liable, since, if the owners were not negligent in constructing the elevator, or in keeping it in proper repair, or in ascertaining its insecure condition, how could it be said that the other defendants were chargeable with negligence in that regard? In view of the allegations of the complaint, the theory upon which the case was submitted and the evidence in the case, I do not see how the jury could consistently find, or be permitted to find, a verdict in favor of the defendants Wheeler and not in favor of the other defendants. I think the findings of the jury are so inconsistent, and the verdict so illogical, that it ought not to stand. (Hyatt v. N. Y. C. & H. R. R. R. Co., 6 Hun, 306; Gray v. Brooklyn Heights R. R. Co., 72 App. Div. 454; People v. Munroe, 190 N. Y. 435.) I think the verdict should be set aside and a new trial granted. McLennan, P. J., concurred.

In the Matter of the Voluntary Dissolution of Warsaw Hotel Company. Albert G. Vosburgh, Appellant; Bankers' Surety Company and Others, Respondents. - Order affirmed, with ten dollars costs and disbursements. All concurred.

In the Matter of the Petition of Elmer Hall, Respondent, to Drain Certain Lands in the Town of Hartland, Niagara County, N. Y. Charles A. Moltrop and Others, Appellants.-Order affirmed, with ten dollars costs and disbursements. All concurred.

The People of the State of New York, Respondent, v. John J. Stebbins, Appellant.-Judgment and order affirmed. All concurred.

Oliver Refining Company, Appellant, v. Portsmouth Cotton Oil Refining Corporation, Respondent. - Order affirmed, with ten dollars costs and disbursements. All concurred.

Ella M. Shand, as Administratrix, etc., of William S. Shand, Deceased, Respondent, v. Hudson Valley Railway Company, Appellant. - Judgment and order affirmed, with costs. All concurred.

Albert J. Seaton, Respondent, v. Abram G. Brower, Appellant. - Order denying motion to strike out interest reversed, without costs. Judgment modified by striking therefrom the amount of interest allowed, and as so modified affirmed, together with the order denying motion for a new trial upon the minutes, without costs of this appeal to either party.

Orville A. Manzer, Respondent, v. Roscoe C. Smith, Appellant. - Judgment and order affirmed, with costs. All concurred.

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