Allen v. Crowell-Collier Pub. Co.

• Decision Date: 21 February 1968
• Docket Number: CROWELL--COLLIER
• Citation: 21 N.Y.2d 403,288 N.Y.S.2d 449
• Parties: , 235 N.E.2d 430 Lillian ALLEN et al., Appellants, v.PUBLISHING COMPANY, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 449

288 N.Y.S.2d 449

21 N.Y.2d 403, 235 N.E.2d 430

Lillian ALLEN et al., Appellants, v. CROWELL--COLLIER PUBLISHING COMPANY, Respondent.

Court of Appeals of New York.

Feb. 21, 1968.

Victor A. Kovner, Sydney D. Bierman, John C. Lankenau and Allen G. Schwartz, New York City, for appellants.

Terence F. Gilheany and Peter Megargee Brown, New York City, for respondent.

FULD, Chief Judge.

The plaintiffs (upwards of 150 in number) are former employees who had worked in the defendant's plant in Springfield, Ohio. Discharged in December, 1956, when the defendant suspended publication of Collier's and Woman's Home Companion, they sue for severance and retirement pay. It is their claim that the defendant had 'established and announced to its employees, including plaintiffs, and (had) carried out a policy and practice' of making severance--or retirement--payments upon the termination of employment and that they had 'started or continued in defendant's employ', knowing of and relying upon this policy.

Following joinder of issue, the plaintiffs submitted certain interrogatories to the defendant pursuant to CPLR 3101 and 3130, seeking information about the defendant's practices, current and past, with regard to severance and retirement pay, both at its Springfield plant and at its other plants and offices. The plaintiffs, who were nonunion employees, also seek to inquire about collective bargaining agreements of the defendant and, in addition, request information concerning practices in the publishing business in general. All this information is necessary, they say, to show that the defendant, although it contends otherwise, had an over-all, uniform policy at its various plants and offices--'consistent' with procedures in the publishing business generally--in regard to severance and retirement pay, whether or not it treated its nonunion employees differently from those who belonged to a union.

The defendant moved to strike most of the interrogatories as not material and necessary to the resolution of the issues; no contention was or is made that the interrogatories are burdensome, seek privileged information or are in any other respect improper. The court at Special Term granted the defendant's motion almost in its entirety. The Appellate Division, by a divided court, affirmed and granted leave to appeal on a certified question. In addition to urging its position that the information sought is not 'material and necessary' within the meaning of CPLR 3101, ¹ the defendant contends that the order below, striking the interrogatories, rested in discretion and is beyond our power of review.

The courts do undoubtedly possess a wide discretion to decide whether information sought is 'material and necessary' to the prosecution or defense of an action (see, e.g., Paliotto v. Hartman, 2 A.D.2d 866, 156 N.Y.S.2d 220) but that discretion is not unlimited. Where, as here, an issue exists as to whether there has been an abuse of discretion, a reviewable question of law is presented. Indeed, the parties have argued the question before us solely as one of law, and so the courts below have decided it, in accordance, we note, with generally accepted practice. (See, e.g., Matter of Rothschild, 298 N.Y. 538, 80 N.E.2d 670; Solomon v. La Guardia, 295 N.Y. 970, 68 N.E.2d 54; Drake v. Herrman, 261 N.Y. 414, 416, 185 N.E. 685, 686; see, also, Di Russo v. Kravitz, 19 N.Y.2d 1012, 281 N.Y.S.2d 1009, 228 N.E.2d 904; Cohen and Karger, Powers of the New York Court of Appeals, §§ 88, 157, 158.)

The words, 'material and necessary', are, in our view, to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason. CPLR 3101 (subd. (a)) should be construed, as the leading text on practice puts it, to permit discovery of testimony 'which is sufficiently related to the issues in litigation to make the effort to obtain it in preparation for trial reasonable' (3 Weinstein-Korn-Miller, N.Y.Civ.Prac., par. 3101.07, p. 31--13). Even under former section 288 of the Civil Practice Act, the courts tended to follow this more liberal construction as pretrial examinations became 'concerned more acutely with the preparation of the case than with the preservation of testimony.' (Southbridge Finishing Co. v. Golding, 2 A.D.2d 430, 434, 156 N.Y.S.2d 542, 546; see, also, Cornell v. Eaton, 286 App.Div. 1124, 146 N.Y.S.2d 449; Dorros, Inc. v. Dorros Bros., 274 App.Div. 11, 13--14, 80 N.Y.S.2d 25, 28.) And, since the enactment of CPLR 3101, the courts have continued 'to enlarge the permissible use of pre-trial procedure' begun under the former statute. (Rios v. Donovan, 21 A.D.2d 409, 411, 250 N.Y.S.2d 818, 820 (1st Dept.); see, also, Matter of Comstock, 21 A.D.2d 843, 844, 250 N.Y.S.2d 753, 755 (4th Dept.); Nomako v. Ashton, 20 A.D.2d 331, 332--333, 247 N.Y.S.2d 230, 233 (1st Dept.); see, also, Siegel, Disclosure under the CPLR: Taking Stock After Two Years, Eleventh Annual Report of Administration Board of Judicial Conference, 1965 (N.Y.Legis.Doc., 1966, No. 90), pp. 148, 185.) 'The purpose of disclosure procedures', declared the Appellate Division for the First Department in the Rios case (21 A.D.2d, at p. 411, 250 N.Y.S.2d, at p. 820), 'is to advance the function of a trial to ascertain truth and to accelerate the disposition of suits' and, in the Comstock case (21 A.D.2d, at p. 844, 250 N.Y.S.2d at p. 755), the Appellate Division, Fourth Department, wrote that, "(i)f there is any possibility that the information is sought in good faith for possible use as evidence-in-chief or in rebuttal or for...