made for the plaintiff's claim, and that there had been no attempt to ascertain the debts and to make provision therefor. [3] In general, an action may be brought against a corporation independent of its dissolution; but where the corporation, as here, has disposed of all its property without the payment of its debts, etc., and discontinued its operations it would be a waste of time to sne and have execution returned unsatisfied, and then to proceed against the directors. Whether or not the trustees could join in an action with a corporation has not been expressly decided in this state, as far as I have been able to ascertain. On the other hand, however, it has been held that the action could be continued against the directors of a corporation where the corporation had been dissolved during pendency of the action. Hepworth v. Union Ferry Co., 62 Hun, 257, 16 N. Y. Supp. 692. [4] In view of the facts conceded by the defendant, as referred to above, and having in mind the futility of any continuance against the corporation alone, I am inclined to permit the bringing in of the directors as parties defendant. I believe this court is permitted to allow such relief under the provisions of our General Corporation Law. Motion is granted to the extent of bringing in the parties as requested, and for the issuance of a supplemental summons, and leave is granted to serve the amended and supplemental complaint annexed to the motion papers. The action is to retain its position on the calendar of this court. Service of the papers herein should be made forthwith, in order that there may be no delay in the trial of the action. Ordered accordingly. (118 Misc. Rep. 670) KOPPEL INDUSTRIAL CAR & EQUIPMENT CO. v. PORTALIS & CO., Limited. (Supreme Court, Special Term, New York County. May, 1922.) 1. Costs 42(1)—Notice for admissions of fact may be made in action commenced prior to taking effect of Civil Practice Act. A notice or a demand for admissions of fact, in order to save costs (Civil Practice Act, § 323), may be made in an action commenced prior to the taking effect of the act, in view of section 1569, giving the court jurisdiction to apply any remedial provision of the act not inconsistent with the proceedings taken prior to enactment of act, notwithstanding section 1568, making the act applicable to actions or special proceedings "hereafter commenced." 2. Costs 42(1)-Motion for admissions of fact may be made without first obtaining leave of court. A notice or a demand for admissions of fact, to save costs, may be made, under Civil Practice Act, § 323, without first obtaining leave of the court, since any objections by adversary may be presented in motion to strike out. 3. Costs 42(1)-Scope of motion for admissions of fact stated. Civil Practice Act, § 323, giving to either party the right by notice in writing to call on adverse party for admissions of fact, in order to save costs, held applicable only to facts to which adverse party has no denial in any shape or form, and which are known to him, or the truth or falsity of which are easily ascertainable by him without much trouble or expense, and not to questions of opinion or matters as to which evidence would be inadmissible at the trial. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (195 N.Y.S.) Action by the Koppel Industrial Car & Equipment Company against Portalis & Co., Limited. On plaintiff's motion to strike out notice and demand for admissions of fact. Motion granted in part. Hornblower, Miller & Garrison of New York City (J. Norris Miller and Rene A. Wormser, both of New York City, of counsel), for plaintiff. Gould & Wilkie, of New York City (Charles G. Keutgen, of New York City, of counsel), for defendant. COHALAN, J. The plaintiff moves to strike out a notice and demand under section 323 of the Civil Practice Act. The action is brought to recover damages for defendant's refusal to accept and pay for a number of reels of wire ordered by defendant and purchased by plaintiff for defendant under an agreement calling upon the defendant to pay certain stipulated prices therefor. The wire was shipped by plaintiff to defendant in the Argentine Republic. The answer consists of a general denial and five counterclaims based on breaches of contract in failing to deliver on time and breaches of warranty. The reply makes general denials of the counterclaims and interposes separate defenses. [1,2] Before making a determination on the merits it will be necessary to consider whether or not-this action having been commenced and issue joined prior to October 1, 1921-the provision of the new Practice Act with regard to admissions is applicable to it. Section 1568 et seq. of the Civil Practice Act show the extent of the application of this act. Section 1568 expressly states that it applies to all actions or special proceedings "hereafter commenced." Section 1569 provides an exception to the general rule contained in section 1568, to the effect that the court in its discretion, when the best interests of justice will be served, may apply any remedial provision of the act which is not inconsistent with the proceedings theretofore had. The wording of sections 1568, 1569, and 323 of the Civil Practice Act has raised some doubt as to whether or not one may serve a notice or a demand for admissions in an action commenced prior to October 1, 1921, and, if so, whether or not it may be done without applying to the court for leave to take advantage of such remedial provision. I believe the provisions of section 323 are such as the codifiers had in mind in formulating the exception of section 1569 to the general rule. of section 1568. As to the second query, in view of the causes leading up to the adoption of the new Practice Act and Rules, it seems to me that, though it might be more expeditious to ask leave of the court in the first instance, one may serve a notice or demand without obtaining leave, and if his adversary has any objections to make he may present them in a motion to strike out-as is being done here. Admissions, as well as stipulations, are useful. Sometimes they are dangerous, and section 323 of the Practice Act was never intended to do other than provide for admissions for a useful purpose. It is difficult, if not practically impossible, in the application of this section, to draw a general line of demarcation. Each case must be considered on its own merits, keeping in mind whether or not justice will be served by allowing the demand for the admissions. Frequently it will be for the best interests of justice to strike out requests for admissions, even though on their face, taken in conjunction with the pleadings, they appear to be matters that should be the subject of admission. For in some cases what might seem, from the pleadings and demand, to be a fact that should be admitted without putting the adversary to the trouble and cost incident to proof may be an admission that with other evidence introduced at the trial would place a fact in a far different light than the party admitting had intended. Again, a demand may call for an admission of a fact which as a matter of law would be inadmissible on a trial, and it goes without saying that section 323 never contemplated such a condition of affairs. Nor did this section contemplate that a party might require an adversary to admit a fact to ascertain the truth or falsity of which would put that adversary to trouble and expense. It is contingencies like these that are and will be the stumbling blocks to the application of this section, and that are keeping and will keep litigants from admitting facts other than those that will justify but one interpretation and facts that are known or are easily ascertainable. [3] This section may, and probably will, be abused in many instances, as is the case with rule 113. This rule 113, as I have had occasion to remark in a late decision, seems to have led to a practice of embarking on so-called "fishing excursions"-attempting even to go into the merits of counterclaims, which are outside the provisions of that rule. So with section 323, which, unless carefully applied, will have the same tendency and will open a way for some to place upon an opponent the burden and expense necessary to prove their own case. Section 323, to my mind, provides only for a demand for an admission of facts to which one's adversary has no denial in any shape or form, and which are known to him, or the truth or falsity of which are easily ascertainable by him. The purpose of the section, as well as the general scope of the new Practice Act and Rules, is to simplify the issues, shorten the trial, and save time and expense in matters that can be proven, but whose proof will necessarily impose labor and expense on the party seeking to prove them which in justice should not be imposed. In the present case we have what probably is to date the most comprehensive notice and demand made under section 323. This notice covers 115 folios, and contains 226 separately numbered paragraphs. It apparently covers to a great extent the field of the defendant's proof. To allow all these demands would be calling upon the plaintiff to prove his adversary's case, to disprove his own, and at the same time to pay all the expense. Some of the demands, if allowed, would call upon plaintiff to go to trouble and expense to acquire the knowledge sufficient to admit facts that are peculiarly within the knowledge of the defendant itself; some call for what, in so far as the papers before me show, is purely opinion evidence, or evidence that would be inadmissible at a trial. Others of the demands call for admission of what, for a better term, we shall call "half a fact," which, standing alone, might have to the court or jury an entirely different (195 N.Y.S.) meaning than if the whole fact were presented. Surely it may not be held that this plaintiff should be directed to comply in full with such a notice. Section 323 requires not only a judicial, but a judicious, application. It should, as I have already indicated, apply to admissible facts; to an entire fact, not a half fact; to facts the truth or falsity of which the party may ascertain without much trouble or expense, and without basing them on opinion. I have gone over the many demands in the present notice, and believe that a judicial and judicious application of section 323 calls for the granting of this motion only in part. It would be unreasonable to place such a burden upon the plaintiff as defendant's demands would impose. All those demands that call for questions of opinion, all that are not definitely ascertainable by the plaintiff, all that call for "half a fact," and all that would be inadmissible as evidence at the trial should be stricken out. An examination before trial would be more to the point on many of the items. As to the first 53 items the parties should stipulate the essential parts of the various communications. If they are unable to do so, then I shall grant these items; but the plaintiff may, in addition of the quoted parts, include in its admissions what it claims are the other essential parts. In addition to the above the following items are allowed: Nos. 51, 52, 53, 107, 143, 144, and 192. The balance of the items are such as the plaintiff should not, at least at this time, be called upon to admit. The greater number of them call for facts peculiarly within the knowledge of defendant, or based upon reports made to it. Motion granted as indicated. Settle order on notice. Ordered accordingly. (118 Misc. Rep. 674) BROOKLYN CLOTHING CORPORATION v. PEOPLE'S NAT. FIRE INS. CO. SAME v. FIDELITY-PHENIX FIRE INS. CO. OF NEW YORK. (Supreme Court, Kings County. May, 1922.) 1. Insurance 115(3)—Bailee has insurable interest in goods in his possession. A bailee may insure goods in his possession in his own name and to their full value, being so situated that he might be liable for the loss of the goods, if destroyed by the peril insured against. 2 Bailment II-Bailee's liability for loss of goods extends to loss from riot or commotion. A bailee's liability for loss of goods in his care extends to loss from riot or commotion as much as from any other risk against which he might forefend by whatever reasonable care required. 3. Insurance 164 (2)—Policy issued to manufacturer held to cover full value of goods in its possession as bailee, and not merely its interest therein for work done. Policy insuring clothing manufacturer against loss by "riot and commotion," covering the manufacturer's building and the contents therein owned by it, and sold, but not removed, and also the manufacturer's interest in and its legal liability for similar property held by it "in trust or on commission or in joint account with others," held to cover the full value of the goods in the manufacturer's possession as bailee, and not merely the amount of its personal interest therein for the value of the work done. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 4. Judgment 180-Rule of civil practice providing for summary judgment in action to recover "debt" held applicable to action on insurance policy after loss has occurred. Rules of Civil Practice, No. 113, providing that answer may be stricken and summary judgment rendered in an action to recover a "debt" or liquidated demand arising in certain cases, held applicable to an action on policies insuring insured against loss by riot and commotion after loss has occurred thereunder, since the liability after the loss has occurred becomes an absolute liability, and therefore a "debt." [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Debt.] Actions by the Brooklyn Clothing Corporation against the People's National Fire Insurance Company and against the Fidelity Phenix Fire Insurance Company of New York. On plaintiff's motions for summary judgments. Motions granted. Richards, Smyth & Conway, of Brooklyn (Albert C. Conway, of Brooklyn, of counsel), for plaintiff. Samson Selig, of New York City, for defendant. FAWCETT, J. These are motions for summary judgments under rule 113 of the Rules of Civil Practice. The actions are to recover under policies of insurance against loss by "riot and commotion." Plaintiff's clothing manufacturing establishment was invaded by a group of individuals, and, among other acts of disturbance, acids and chemicals were spilled upon a number of coats upon which the plaintiff was working for the owners. For the amount of the value of the work done $250.80 liability was conceded, and that amount was duly tendered, but for the value of the coats themselves, or the damage thereto, aggregating $791, liability was disputed, on the contention that the policy, or rather the policies, for both are the same, was limited to the insurance of plaintiff's personal interest in the goods. [1] In terms the insurance was on the building and "on the contents therein owned by the assured, or sold, but not removed; also on his [their] interest in and his [their] legal liability for similar property held by him [them] as follows, viz.: In trust or on commission, or in joint account with others, or on storage or for repairs." A bailee may insure goods in his possession in his own name and to their full value. There is a real value to protect, and he is so situated with reference to it that he might be liable for the loss, if destroyed by the peril insured against. His actual personal interest and his possible legal liability for the owner's loss make up an insurable interest; the latter being recognized in the words "in trust" (which are in the above quotation from the policies in the present case). Herkimer v. Rice, 27 N. Y. 163; Riggs v. Commercial Mut. Ins. Co., 125 N. Y. 7. 12, 25 N. E. 1058, 10 L. R. A. 684, 21 Am. St. Rep. 716; Cone v. Niagara Fire Ins. Co.,. 60 N. Y. 619: Stillwell v. Staples, 19 N. Y. 401. [2, 3] So far the parties are in accord as to the law. And had there been but the words "in trust" used in reference to the goods, as in the cited cases, they would still be in accord. There is, however, the word "interest," not present in these cases, and defendant urges that the effect thereof was to restrict the liability to the insured's own interest, For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes |