Levine v. Bornstein

• Court: New York Court of Appeals Court of Appeals
• Writing for the Court: Action was brought on assigned judgments. The Supreme Court, Special Term, Kings County, Part I, James S. Brown, Jr.
• Citation: Levine v. Bornstein, 6 N.Y.2d 892, 190 N.Y.S.2d 702 (N.Y. 1959)
• Decision Date: 08 July 1959
• Parties: , 160 N.E.2d 921 R. H. LEVINE, as Assignee of Atwater Live Poultry Co., Inc., Appellant, v. Thomas BORNSTEIN, Respondent.

Page 702

190 N.Y.S.2d 702

6 N.Y.2d 892, 160 N.E.2d 921

R. H. LEVINE, as Assignee of Atwater Live Poultry Co., Inc., Appellant, v. Thomas BORNSTEIN, Respondent.

Court of Appeals of New York.

July 8, 1959.

Appeal from Supreme Court, Appellate Division, Second Department, 7 A.D.2d 995, 183 N.Y.S.2d 868.

Action was brought on assigned judgments. The Supreme Court, Special Term, Kings County, Part I, James S. Brown, Jr., J., 13 Misc.2d 161, 174 N.Y.S.2d 574, entered an order striking the complaint and dismissing the action because of the plaintiff's willful disobedience of orders for his examination before trial, and the plaintiff appealed.

The Appellate Division, 7 A.D.2d 995, 183 N.Y.S.2d 868, affirmed the judgment and held that where defendant sought to elicit facts in support of affirmative defense of violation of Sections 274 and 275 of the Penal Law, Consol.Laws, c. 40, relating to buying demands on which to bring an action, and purchase of claims by corporations or collection agencies, and plaintiff refused to answer such questions, on ground that his answers might tend to incriminate him, defendant's motion to dismiss the complaint because of plaintiff's refusal to answer the questions on examination before trial was properly granted. Kleinfeld, J., and Nolan, P. J., dissented.

The plaintiff appealed to the Court of Appeals, contending that the Special Term had no 'inherent' power to grant the order, and that the circumstances in which a pleading may be stricken and final judgment be awarded in the area of pre-trial procedure must be...