Glens Falls Ins. Co. v. Weiss
| Decision Date | 13 April 1956 |
| Citation | 6 Misc.2d 729,150 N.Y.S.2d 685 |
| Parties | GLENS FALLS INSURANCE COMPANY, Plaintiff, v. Murray W. WEISS and William M. Gross, d/b/a The Weiss Co., F. M. Weiss & Co. Inc. and Sophia Bugen, also known as Sophia Weiss, Defendants. |
| Court | New York Supreme Court |
Konheim, Halpern & Wolf, New York City (David S. Konheim, New York City, of counsel), for plaintiff.
Abraham Wolf, New York City, for defendants Murray W. Weiss and William M. Gross.
David S. Kumble, New York City, for defendants F. M. Weiss & Co., Inc., and Sophia Weiss.
This is a motion by the plaintiff for an order to take the deposition of the defendants Murray W. Weiss and William M. Gross (hereinafter referred to as 'Weiss and Gross') on open commission in the State of New Jersey. At the time of the commencement of this action Weiss and Gross had an office in Bronx County, where they were directly amenable to the process of this court. Since then, however, they no longer maintain an office within this jurisdiction, and are now employed in and are residents of Hackensack, N.J.
By this suit, the plaintiff seeks to set aside an alleged fraudulent conveyance of certain premises in The Bronx, which conveyance was made by the defendant William M. Gross to his mother, Sophia Bugen, also known as Sophia Weiss. The plaintiff in its complaint also asks that Weiss and Gross be declared to be the owners of the property, and that there be an accounting by the defendant F. M. Weiss & Co., Inc. (which managed the property) and by the defendant Sophia Weiss. The answers of the several defendants consist, in the main, of general denials.
The plaintiff has previously caused to be served notices to examine the defendants before trial, as adverse parties, with separate items addressed to the defendants Weiss and Gross, and with distinct matters set forth with respect to the maternal and corporate defendants. The latter defendants moved to modify the notice affecting them, which motion was granted to some extent; and these defendants were examined. The defendants Weiss and Gross failed to appear for examination. Thereafter, the plaintiff served another notice to examine--this time, directed only to the defendants Weiss and Gross as adverse parties, and, again, these defendants defaulted.
The defendants Weiss and Gross advance two arguments for the denial of the examination. The first is that there is an outstanding notice to examine them, and the second is that the plaintiff has not made out a proper case under Section 288 of the Civil Practice Act for the examination desired. Neither of these contentions is sufficient to defeat the present application.
While, generally, where there is an outstanding order or notice for an examination before trial, a second application or notice is improper, Hoover v. Rochester Printing Co., 2 App.Div. 11, 37 N.Y.S. 419; Schriro v. Kennell & Shea, 223 App.Div. 786 227 N.Y.S. 613; that is not the situation here. The examination was never held. And, moreover, the outstanding notice deals with the examination of Weiss and Gross as adverse parties and not as witnesses, which is the burden of the present application. For it is the desire of the plaintiff to take the oral testimony of these defendants as witnesses, and particularly as against the other defendants in the action. The plaintiff contends that it would serve no useful purpose to strike out the answers of Weiss and Gross on the basis of their default, and that in fact it is more important to the proof of the plaintiff's cause that it procure their testimony, and that, since there are reasonable grounds to believe that they will not attend the trial, the relief now requested is a matter of paramount substance to the plaintiff in this action. Assuming that the plaintiff was able to enforce its...
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Wiseman v. American Motors Sales Corp.
...a separate and independent basis for granting discovery by Mason, under subdivision (a) (par. ) of CPLR 3101 (Glens Falls Ins. Co. v. Weiss, 6 Misc.2d 729, 731, 150 N.Y.S.2d 685; see, also, Frommer v. Garson, 34 A.D.2d 213, 214, 310 N.Y.S.2d 822; Gorie v. Gorie, 48 Misc.2d 413-414, 265 N.Y.......
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Reynolds Securities, Inc. v. Underwriters Bank & Trust Co.
...notices, or subpoenas calling for his production of records or the taking of his deposition (cf. Glens Falls Ins. Co. v. Weiss, 6 Misc.2d 729, 150 N.Y.S.2d 685 (Matthew M. Levy, J.)). Thus, to anticipate the eventuality that the defendant may elect to proceed with his avowed intention to co......
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Ball v. Monroe County
...are readily distinguishable from the present case. See Matter of Reis, 48 Misc.2d 330, 264 N.Y.S.2d 731; Glens Falls Ins. Co. v. Weiss, 6 Misc.2d 729, 150 N.Y.S.2d 685. Thus the construction of the "any person" language of CPLR 3101(a)(4) accords with that of the "any Other person" language......
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Skok v. City of Glendale, 1
...does not (where there are other parties defendant) become a general witness on all of the facts.' Glens Falls Insurance Company v. Weiss, 6 Misc.2d 729, 150 N.Y.S.2d 685 at 688 (1956). 'This is a deposition offered by an 'adverse party' in pursuance of Rule 26(d) 2, but as to the appellee, ......