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and 121 New York State Reporter Appeal from Special Term, Kings County.

Action by Thomas G. Knight against Abraham M. Morgenroth and others. From an order denying a motion to vacate an order directing the examination of defendant Morgenroth before trial, defendants appeal. Reversed.

Argued before HIRSCHBERG, P. J., and BARTLETT, WOODWARD, JENKS, and HOOKER, JJ.

Bertram L. Kraus (Henry B. Wesselman, on the brief), for appellants.

Charles Melville Weeks, for respondent.

WOODWARD, J. This action is brought to foreclose a mechanic's lien filed against certain property owned by the defendant Morgenroth, and, upon the case coming on for argument, the defendant interposed an objection, in the nature of a demurrer, that the complaint did not state facts sufficient to constitute a cause of action, in that it did not allege that at the time of filing the lien in suit there still remained in the hands of the said Morgenroth funds due or to grow due to the contractors, Schneider and Herter, and funds in the hands of the said contractors, due or to grow due to the subcontractors, Lyman and Costello, to whom the plaintiff furnished the goods for the value of which this action is brought. The plaintiff was permitted to amend his complaint, and an adjournment was granted to allow the plaintiff to discover the evidence necessary to support this new allegation. The plaintiff thereupon made application, under the provisions of sections 870, 871, and 872 of the Code of Civil Procedure, for an order directing Abraham M. Morgenroth, Ernest E. W. Schneider, and Henry Herter to submit to an examination before trial; the affidavit of the plaintiff alleging that the testimony of these three men was “material and indispensable to this plaintiff, to enable him to prove the allegation above mentioned," and that "the information sought by the plaintiff is peculiarly and entirely within the knowledge of the persons above named, and is not known to the plaintiff,” and “that it is impossible for the plaintiff in any other way to prove what amounts, if any, were due or to become due at the time of filing said lien.” The order asked for was granted, and, a motion to vacate the same being made upon the papers, the order was vacated as to Schneider and Herter, who were not parties to the action, but was sustained as to Mr. Morgenroth. It thus appears by the plaintiff's affidavit that he will be able to prove his case, if he in fact has a case, by the testimony of Schneider and Herter; that the evidence “is peculiarly and entirely within the knowledge of the persons above named,” and the only purpose of this examination appears to be to compel the defendant Morgenroth to disclose to the plaintiff whether or not he has a cause of action. Indeed, plaintiff's counsel, in support of the order, admits that the object of the examination is a mere fishing expedition, for he says:

"If the testimony of this defendant should be adverse to plaintiff, then plaintiff should know it in time to hunt up other witnesses and to procure all the evidence of every kind obtainable on the question."

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In Sheehan v. The Albany & B. Turnpike Co. (Sup.) 8 N. Y. Supp. 14, it was said that:

“The provisions for such examination are not intended to enable a party to discover what his opponent's testimony will be, so that he may obtain witnesses to contradict it. Experience shows that if a party discovers what his opponent's testimony will be, and has time enough, he is often successful in discovering also witnesses for contradiction."

This court has held that it was not proper, either before or after the commencement of an action, to permit an examination for the purpose of enabling the other party to determine whether he had a cause of action. Matter of Anthony & Co., 42 App. Div. 66, 68, 58 N. Y. Supp. 907; Long Island Bottlers v. Bottling Brewers, 65 App. Div. 459, 72 N. Y. Supp. 976.

We are clearly of opinion that the plaintiff has not shown a proper case for the examination of a party before trial. “The practice of examining a party before trial at the instance of the opposite party should be carefully guarded by the court, so that it may not be productive of evil. When it is evident that the party asking for the examination is sufficiently acquainted with the facts of the case to obtain the proof which he needs, and that in fact he desires the examination only to discover to what his opponent will testify, then the order should not be granted, or, if it has been granted, should be set aside.” Sheehan v. The Albany & B. Turnpike Co., supra. Two of the witnesses which the plaintiff says are essential to his cause of action are not parties to the suit, and no reason appears why they may not be witnesses upon the trial. We are of opinion that this is not a proper case for the granting of an order compelling the defendant to submit to an examination. The order appealed from should be reversed, and the order directing the examination should be vacated.

Order reversed, with $10 costs and disbursements, and motion granted, with costs. All concur.

ENNIS et al. v. UNTER MYER. (Supreme Court, Appellate Division, Second Department. April 15, 1904.) 1. ATTACHMENT-NONRESIDENCE-SUMMONS-DESIGNATION OF PERSON TO RE

CEIVE SERVICE.

Code Civ. Proc. § 636, provides that attachment may issue where the defendant, being an adult and a resident of the state, has been continuously without the state for more than six months next before the granting of an order for publication of summons against him, and has not made a designation of a person on whom a summons in his behalf may be served. Held, that a certificate of the clerk of the county of defendant's previous residence, attached to a creditor's letter requesting that he search his office for designation of a person on whom service might be made on behalf of defendant from November 27, 1877, to December 10, 1903, to the effect that no designation had been found, constituted a sufficient basis for the creditor's assertion, on information and belief, in

an attachment affidavit, that no person had been so designated. 2. SAME-WARRANTS GROUNDS OF ATTACHMENT-DESIGNATION-MOTION-OB

JECTIONS.

Where an objection to warrants of attachinent, that they did not sufficiently recite the grounds of the attachment, were not specified in de

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and 121 New York State Reporter
fendant's notice of motion to vacate the warrants on the papers, and the
omission, if any, was a mere irregularity, the objection was unavailable.

Hooker, J., dissenting.
Appeal from Special Term, Kings County.

Action by Thomas A. Ennis and another against Maurice Untermyer. From an order denying a motion to vacate warrants of attachment, defendant appeals. Affirmed.

Argued before HIRSCHBERG, P. J., and BARTLETT, WOODWARD, JENKS, and HOOKER, JJ.

Louis Marshall, for appellant.
Treadwell Cleveland, for respondents.

WILLARD BARTLETT, J. This appeal is based upon two propositions: (1) That the plaintiffs have not established the existence of the jurisdictional fact that the defendant has not made a designation of a person upon whom to serve a summons in his behalf, as prescribed by section 430 of the Code of Civil Procedure; and (2) that the warrants do not comply with section 641 of the Code, because they do not recite any grounds of attachment recognized by the Code.

Section 636 of the Code of Civil Procedure, in the second subdivision, among other things, provides that an attachment may issue "where the defendant, being an adult and a resident of the state, has been continuously without the state of New York for more than six months next before the granting of the order of publication of the summons against him, and has not made a designation of a person upon whom to serve a summons in his behalf, as prescribed in section 430 of this act.” These warrants of attachment against Mr. Untermyer were sought on the ground that he was an absentee under this provision. The evidence that he had not made the prescribed designation is found in the following statement in the affidavit of Mr. Ennis, one of the plaintiffs:

"I have caused a search to be made in the office of the clerk of the county of New York, and I am informed and believe that the said defendant has not made a designation of a person upon whom to serve a summons on his behalf, as prescribed by section 430 of the Code of Civil Procedure, as appears by the certificate of said clerk hereto annexed.” The certificate annexed to the affidavit is as follows:

“New York City, December 10th, 1903. "To Thomas L. Hamilton, Clerk of the County of New York: Please search in your office for the designation of a person upon whom service can be made on behalf of Maurice Untermyer (filed pursuant to the terms of Section 130 of the Code of Civil Procedure) from November 27th, 1877, to the date hereof and certify the result to

Cleveland & Cleveland,

"27 William Street. "Nothing found to December 10th, 1903, at 9 a. m. "[Seal.]

Thomas L. Hamilton, Clerk.” We think that this certificate, although not capable of being used by itself as evidence, constituted a sufficient basis for the affiant's assertion of information and belief in his affidavit. In other words, the declaration by the county clerk in this form was information "which he had a right to consider well founded,” and upon which the court

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could exercise jurisdiction. Hawkins v. Pakas, 39 App. Div. 506, 57 N. Y. Supp. 317.

The second point, to the effect that the warrants do not sufficiently recite the grounds of the attachment, is not available to the appellant, inasmuch as the omission, if there be one, is merely an irregularity, and is not specified in the defendant's notice of motion. King v. King, 68 App. Div. 189, 74 N. Y. Supp. 119; Rallings v. McDonald, 76 App. Div. 112, 78 N. Y. Supp. 1040.

The order refusing to vacate the warrants should be affirmed.

Order affirmed, with $10 costs and disbursements. All concur, except HOOKER, J., who dissents.

CLARKE v. WELSH. (Supreme Court, Appellate Division, Second Department. April 15, 1904.) 1. LANDLORD AND TENANT-UNSAFE PREMISES-LANDLORD'S DUTY.

A building consisted of stores on the first floor, and apartments above, and at the rear there were balconies running across the building, on a level with the several floors; each balcony being connected with the other by stairways, and being used by the tenants to reach a common cellar and yard. Held, that the landlord owed the occupant of a tenement the duty of exercising ordinary care to make the railing of the balconies in the

rear of the stores reasonably safe. 2. SAME-CONTRIBUTORY NEGLIGENCE-QUESTION FOR JURY.

In an action against a landlord for the death of a tenant owing to the railing of a balcony in the rear of the building having given way with her as she leaned over the railing, held, that the question of her con

tributory negligence was one for the jury. Appeal from Trial Term.

Action by Joseph Clarke, as administrator of the estate of Anne Clarke, deceased, against Elizabeth B. Welsh. From a judgment in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals. Affirmed.

Argued before HIRSCHBERG, P. J., and BARTLETT, JENKS, WOODWARD, and HOOKER, JJ.

James M. Hunt, for appellant.
Michael J. Tierney, for respondent.

WOODWARD, J. The defendant in this action, who appeals from the judgment, is the owner of a four-story tenement building in the city of Yonkers. The building has three stores on the ground floor, and above these stores are apartments. At the rear there are four balconies, running entirely across the building, and on a level with the several floors. From each of these balconies there is a single stairway leading to the balcony above, and these stairways were used by the tenants of the several apartments in reaching a common cellar and yard. The plaintiff's theory, and the one which must have been accepted by the jury, was that these several balconies, which were not partitioned, and the single stairway leading to them, and thence to the

11. See Landlord and Tenant, vol. 32, Cent. Dig. 88 629, 633.

and 121 New York State Reporter yard and basement, were retained in the custody and control of the defendant for the common use of all of the tenants, and that the defendant therefore owed the plaintiff's intestate, who was one of such tenants, the duty of ordinary care in the construction, care, and maintenance of such balconies. The defendant, on the other hand, insists that only the balconies in the immediate rear of the several apartments, or at least in the case of the store in the rear of which the accident occurred, belonged to the tenant, and that, as the plaintiff's intestate was injured through the falling of the railing in the rear of one Friedman's store, the defendant owed her no duty.

We think the facts and circumstances, in connection with the evidence of plaintiff's witnesses, are sufficient to support the view taken by the jury, and that the defendant did owe the plaintiff's intestate the duty of exercising ordinary care in making the balcony in the rear of Friedman's store reasonably safe for the purpose for which it was intended. Certainly, if there was need of the railing in the first instance, the defendant owed it to the common tenants of the building to see that it was maintained in a reasonably safe condition, or at least to exercise a reasonable degree of care to this end.

The evidence shows that on the 2d day of January, 1903, at about 10:30 a. m., Mrs. Clarke, plaintiff's intestate, who lived with her husband and children upon the second floor of this building, immediately over the store of Mr. Friedman, came down the common stairway to the balcony in the rear of the Friedman store; that she passed along this balcony to near the end of the building, where she leaned over the railing with her hand upon the same, for the purpose of calling to her children, who were in the yard below, and who were quarreling at the time. While in this attitude, the railing fell, and the woman was precipitated to the ground, seven feet below, receiving injuries which resulted in her death soon afterward. While there was some conflict of evidence, there was enough before the jury for them to find that the railing was rotted to a degree which could hardly have escaped detection ii any reasonable effort had been made to determine the safety of this balcony railing. One witness testified that it was so decayed at the point where it joined the upright post that it crumbled in his fingers when he took hold of the wood, and there was no dispute that it was in such a condition that it would not hold nails, and that the nails which had been used were rusted and rotten. There was evidence that this condition had been covered up by the use of paint, and the danger, if it may be presumed to have been known to the intestate, was not of that obvious character which would demand a finding of contributory negligence, although it might warrant the jury in finding that it was such a defect as would be discovered by reasonable inspection on the part of one owing the duty of reasonable care in maintaining such a railing. The railing being there for the obvious purpose of protecting those who were lawfully using the balconies, plaintiff's intestate had a right to assume that they were reasonably adapted to that purpose, and whether she was in the exercise of a reasonable degree of care in leaning over this railing without taking the pains to make an examination was clearly a question for the jury. The danger is not shown

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