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App. Div.]

First Department, April, 1910. tatrix gave all of her property, both real and personal, to the appellant, a grand nephew, in trust to pay to her son, David Abbott Thorbarn, froin the income derived therefroin, the sum of ten dollars per week during the terın of his natural life, and upon his death the remainder to the appellant. The son was the testatrix's only heir at law and next of kin. He died intestate without issue on the 15th of August, 1909. The plaintiff is a nephew of the testatrix, and brings this action under section 2653a of the Code of Civil Procedure to determine the validity of the will and codicil. In the complaint lie alleges that he is one of the heirs at law and next of kin” of the testatrix. The appellant sets up as a defense that after the death of the testatrix an agreement was entered into between the son and the appellant, whereby the former consented to the probate of the will and codicil of his mother, and the latter agreed to assign, transfer and set over all of the property of the testatrix, together with all the accumulations derived therefrom, to the son at the expiration of five years after the admission of the will to probate, provided the son in the meantime had refrained from the use of intoxicating liquors and drugs, and proved himself capable of properly using and enjoying the estate. The agreement also provided that the appellant in the meantiine would pay to the son, out of the income derived from the trust estate, the sun of fifteen dollars per week instead of ten, the amount named in the will. The answer further alleges that the son failed to observe the conditions of the agreement, although he accepted the benefits thereunder and ratified the same up to the time of his death. After issue had been joined, the appellant moved that the plaintiff be compelled to reply to the affirmative defense referred to. The motion was denied and he appeals.

I am of the opinion the motion should have been granted. The only possible interest which the plaintiff has in the estate of the testatrix is such as he may have derived through the son. When the testatrix died the plaintiff was not one of the heirs at law or next of kin. He would have had no standing to oppose the probate of her will, since the son was her only heir at law and next of kin, and during his life plaintiff could not have maintained an action to determine the validity of the will, because he would not have been a “person interested as devisee, legatee or otherwise * * *" in First Department, April, 1910.

(Vol. 137. her will or “ interested as leir at law, next of kin or otherwise" in her estate. If the agreement pleaded as a defense is valid, then the plaintiff lias now 110 standing to maintain this action. The Code of Civil Procedure (S 516) authorizes the court, in its discretion, to compel a reply to new matter contained in an answer and set up as a defense by way of avoidance, and this discretion onght to be exercised where the new matter is of such a character as to indicate that, if true, it will constitute a complete defense to the action the object being to narrow the issues to be tried and prevent sur. prise at the trial. Here the new matter pleaded is of such a character as called upon the court to exercise its discretion and require a reply. If it be true that the plaintiff relies upon any facts by which he expects to avoid the apparent sufficiency of the defense there is no reason why he shonld not be required to state it. This will enable the appellant to properly prepare for, lessen the expense of, and prevent surprise at the trial.

The order appealed froin, therefore, is reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Ingraham, P. J., Clarke, Scott and Dowling, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.

GEORGE H. Schuler, Respondent, v. JAMES T. WOODWARD and

Others, as the Reorganization Committee of the SOUTHERN STEEL COMPANY, and Others, Appellants, Iinpleaded with First NATIONAL Bank, Defendant.

First Department, April 8, 1910.

Discovery – examination of party before trial - no examination to pro

cure inadmissible evidence.

A commission will not issue to take the testimony of a party before trial unless App. Div.]

it appear that the testimony is material to the issue to be tried. Thus, the stockholder of a foreign corporation suing to restrain a reorganization

committed from acquiring the corporate assets and from carrying out a proposed plan or reorganization, is not entitled to examine the plaintiff before

First Department, April, 1910. trial on oral questions to show that a third person made a breach of a contract to lend money to the corporation whereby it became bankrupt, such evidence

being inadmissible. The court will not permit its process to be used in one action to enable a party

to ascertain whether he has a cause of action or defense in a contemplated action.

APPEAL by the defendants, James T. Woodward and others, as the reorganization committee, etc., and others, from that part of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 30th day of December, 1909, which directs that a commission issue for the examination of a witness in behalf of the plaintiff, before trial, upon oral questions.

William B. Hornblower, for the appellants.

Abram J. Rose, for the respondent.

order,

MOLAUGHLIN, J.:

Action by a stockholder of a foreign corporation on behalf of himself and other stockholders similarly situated to restrain the appellants, as a reorganization committee, and others from acquiring the property and assets of the corporation and froń carrying out a proposed plan for reorganization, and to have such plan declared illegal and void in fraud of their rights. After issue had been joined the plaintiff obtained an order for the examination of a witness residing at Chattanooga, Tenn., upon oral questions, and the appeal is from such order.

I am of the opinion that the order appealed from should be reversed. The subject-matter concerning which it is desired to examine the witness is in no way connected with or material to the issues involved in the action. Such examination can only be for an ulterior purpose, and for that reason the motion should have been denied. A commission will not issue to take the testimony of a witness in advance of the trial unless it is made to appear that such testimony is material to the issue to be tried. (Wood v. Hoffman Co., 121 App. Div. 636; Gavin v. N. Y. Contracting Co., 122 id. 643; Ehrich v. Root, Id. 719; Oakes v. Star Co., 119 id. 358;

App. Div.-Vol. CXXXVII. 37

First Department, April, 1910.

[Vol. 137. Grant v. Greene, 118 id. 850; Potter v. Morning Journal Assn., 49 id. 242. See, also, Gen. Rules of Practice, rule 82.)

The examination is desired for the purpose of showing the breach of a contract on the part of the firin of Kean, Van Cortlandt & Co. and the corporation in question to furnish certain moneys to it, which failure it is claimed was the cause of or resulted in the bankruptcy of the corporation ; but the failure of such firm to perform the contract, if made, is in no way involved in the issues of this action, nor would evidence bearing on that subject be admissible at the trial. The court will not permit its process to be used in one action to enable a part.y to ascertain whether he may not have a cause of action or defense in a contemplated action.

The order so far as appealed from, therefore, is reversed, with ten dollars costs and disbursements, and the motion for the examination of the witness referred to denied, with ten dollars costs.

INGRAHAM, P. J., CLARKE, Scott and DowLING, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion for examination denied as stated in opinion, with ten dollars costs.

LILLIAN E. Bates, Plaintiff, v. CHARLES W. LOGELING, Defendant.

First Department, April 8, 1910.

Real property — restrictive covenant - erection of apartment house.

There is no violation of a covenant limiting the buildings to be placed upon

lands to first class dwelling houses by the erection of a finely built six story apartment house, costing $75,000 and containing an elevator, telephone service,

etc. In any event equity will not en join the erection of such apartment house where,

since the time the covenant was made, the character of the neighborhood bas changed so that the land is surrounded by common tenement houses, a hospital, café, boarding houses, sanitarium and buildings used for business purposes.

SUBMISSION of a controversy upon an agreed statement of facts pursuant to section 1279 of the Code of Civil Procedure.

App. Div.]

First Department, April, 1910. Walter Loewenthal of counsel [Sydney Bernheim with him on the brief], for the plaintiff.

Henry A. Blumenthal, for the defendant. CLARKE, J.:

On October 1, 1866, one Jacob Vanderpoel was the owner of certain property situate between Fifty-seventh and Fifty-eighth streets and Second and Third avenues in the city of New York, which he conveyed on said date to Mary H. McEvily by deed containing a covenant that the party of the second part, her heirs, grantees and assigns would not erect or permit to be erected on said lots on Fifty-seventh street any building except first-class dwelling houses. The plaintiff by mesne conveyances is the owner in fee of the premises No. 249 East Fifty-seventh street, sixteen feet eight inches in width by one hundred feet five inches in depth, and the defendant by mesne conveyances is the owner in fee of the premises Nos. 235– 241 East Fifty-seventh street, seventy-three feet in width by one hundred feet five inches in depth. The properties owned by both plaintiff and defendant are part of the property conveyed by Vanderpoel to McEvily.

The defendant has filed plans in the tenement house and building departments of the city of New York for the erection of a sixstory elevator apartment house upon his premises above described. The proposed building is to contain six apartments on a floor, to be of superior construction, with telephone service, at a proposed rental of about $10 per room, and is to be erected at an estimated cost of $75,000; the front is to be of light brick and limestone. The plans show a handsome and attractive building.

On the north side of Fifty-seventh street on this block there is a bank building, twelve common tenement houses, a throat and nose hospital, a café, one vacant private dwelling house, a boarding house and a sanitarium. The plaintiff's property is a three-story private dwelling house, the first two floors of which are used for business purposes. On the south side of Fifty-seventh street there is a school house and nine common, ordinary five-story tenement houses. The plaintiff demands judgment restraining the defendant from erecting or constructing upon his premises the said six-story elevator apartment house heretofore described.

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