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App. Div.)

Second Department, April, 1910.

GEORGE A. Higgins, Appellant, v. New York Dock COMPANY,

Respondent.

Second Department, April 22, 1910. Discovery - examination of plaintiff before trial — damages — when

moving affidavit insufficient.

In an action to enjoin a nuisance the defendant is not entitled to examine the

plaintiff before trial to discover the items and details of the damages alleged. An examination of a party before trial will not be granted on the mere allegation

that the deposition is material and necessary if no facts be shown which indicate that there is reason for the statement.

APPEAL by the plaintiff, George A. Higgins, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 30th day of November, 1909, denying the plaintiff's motion to vacate an order for his examination before trial.

Joseph F. Conran, for the appellant.

Charles E. Hotchkiss [ W. MacFarland Lord with him on the brief], for the respondent.

JENKS, J.:

This action is to enjoin the defendant from working a private railroad on certain highways in the borough of Brooklyn, on the ground that it is a nuisance and that it interferes peculiarly with the plaintiff's business. The moving affidavits are two — of the treasurer of the defendant and of its attorney. The treasurer deposes that defendant desires to examine the plaintiff “as to his business, and as to the damage which he alleges he has suffered by reason of the acts of the defendant and as to the manner in which he will be irreparably injured if he is not granted the relief which he asks for in the amended complaint.” The attorney deposes only that he verily believes and has advised the defendant “that in order to properly defend this action the deposition of the plaintiff before trial is material and necessary.” The plaintiff sets forth in his complaint what his business had been, what business he pro poses to carry on, what the nature of the damages to his busi

Second Department, April, 1910.

(Vol. 137. ness was and what the threatened damage to liis business is, but be does not seek to recover compensation. If the purpose of the examination is to procure the items and details of such damages, the examination should have been refused, as it is not incumbent on the defendant to establish the items of the plaintiff's damage. (Hartog & Beinhauer Candy Co. v. Richmond Cedar Works, 124 App. Div. 627; Sperry & Ilutchinson Co. v. O'Neill-Adams Co., 135 id. 285.) The allegation that the deposition before trial is material and necessary affords no ground for the relief in the absence of any facts that indicate that there is reason for that statement. (Naab v. Stewart, 32 App. Div. 478; Nichols N. Y. Pr. 1797 et seq.)

The order must be reversed, with ten dollars costs and disbursements, and the motion granted, with costs.

HIRSCHBERG, P. J., Burr, Rich and Carr, JJ., concurred.

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

THE PEOPLE OF THE STATE OF New York ex rel. Isaac HIMMEL

STEIN, Appellant, v. William F. Baker, Police Commissioner of the City of New York, and Others, Respondents.

Second Department, April 22, 1910. Crime - extradition - indictment for obtaining money on false pretenses. It seems, that where a warrant of extradition is based upon an indictment found

in another State rather than upon an information on affidavits, the defendant will not be released on habeas corpus. Indictment found in the State of New Jersey for obtaining money on false pre. tenses contrary to the statute of that State examined, and held, sufficient to justify a warrant of extradition,

APPEAL by the relator, Isaac Himmelstein, from an order of the County Court of Kings county, entered in the office of the clerk of said county on the 27th day of December, 1909.

Torace London [Mitchell May with him on the brief], for the appellant.

Peter P. Smith, Assistant District Attorney (John F. Clarke, District Attorney, with him on the brief], for the respondents.

App. Div.]

Second Department, April, 1910. JENKS, J.:

This is an appeal from an order of the County Court of Kings county dismissing a writ of habeas corpus. The Governor of New York issued a warrant of extradition of the relator to the authorities of New Jersey. It appeared that the demand of the Governor of New Jersey was based upon the indictment of the relator for the crime of false pretenses. The release of the relator was sought upon the ground that the indictment fails to state the crime of false pretenses or any other crime. There is a distinction drawn in cases of extradition when the demand rests upon an information on affidavit and when it rests upon an indictment. In People ex rel. Lawrence v. Brady (56 N. Y. 182) a reason for the distinction is pointed out in that one is merely the ex parte statement of the accuser and the other is “found by a body standing indifferent between the parties, and charged, upon oath, to inquire of offenses, and which is supposed to act upon competent proof in finding the bill.” Moore on Extradition (8 638) says: “In People v. Brady* the court drew a distinction between the examination of an indictment and of an affidavit to ascertain whether a crime was charged in the demanding State, and expressed the view that the former paper must be regarded as possessing higher validity as evidence of such a charge. This distinction was referred to by the Court of Appeals again in the case of People v. Pinkerton, where the warrant recited that the charge was made by indictment. It is believed that there is no case in which a court has on habeas corpus discharged a fugitive from custody on a rendition warrant on the ground that an indictment accompanying the requisition did not constitute or contain a sufficient charge of crime.” People ex rel. Draper v. Pinkerton (supra) is reported in 77 New York, 247. In Davis's Case (122 Mass. 324) the court say: "When an indictment appears to have been returned by a grand jury, and is certified as authentic by the Governor of the other State, and substantially charges a crime, this court cannot, on habeas corpus, discharge the prisoner because of formal defects in the indictment; but the sufficiency of the charge as a matter of technical pleading is to be tried and determined in the State in which the indictment was found.” (See, too, Matter · of Greenough, 31 Vt. 279.)

* People ex rel. Lawrence v. Brady.—[Rep.

Second Department, April, 1910.

[Vol. 137. It appears that under the statutes of New Jersey, the obtaining of money by false pretenses is a crime. (1 Gen. Stat. of N. J. 1080, § 171; Laws of 1898, chap. 235, § 186.) The indictment is as follows: “ In the Court of Oyer and Terminer of Monmouth County,

October Terin, in the year of our Lord One thousand nine

hundred and nine. “MONMOUTH COUNTY, to wit:

“ The Grand Inquest of the State of New Jersey in and for the body of the County of Monmouth, upon their respective oaths.

“ Present that Isaac Himmelstein, late of the Township of Neptune, in the said County of Monmouth, on the nineteenth day of April, in the year of our Lord one thousand nine hundred and nine, with force and arms, at the Township of Neptune aforesaid, in the County of Monmouth, and within the jurisdiction of this Court, devising and intending to cheat and defrand one Frederick D. Hurley of his goods, moneys, chattels and property, unlawfully, knowingly and designedly did falsely represent, pretend and say to the said Frederick D. Hurley that he was the owner of a certain tract of real estate in the City of New York valued at eleven thousand dol. lars ; that he had a deed for the said real estate in his own name, and that it was free and clear of all incuinbrances whatsoever; that he was the owner of two stores, one in New York and one in Brooklyn, run in his own name, and at the same time and place he indorsed notes for one A. Hamelstein to the amount of two hundred and fifty dollars, which note was to secure the payment of a certain house sold to A. Himmelstein, whereas in truth and in fact such representations were untrue; that he was not the owner of said real estate and stores at that time, thereby defrauding the said complainant Frederick D. Hurley out of the said goods valued in all at the sum of eight hundred and ten dollars as he, the said Isaac Himmelstein then and there well knew, and all of which said false pretense and pretenses the said Isaac Himmelstein then and there well knew to be false; by color and means of which said false pretense and pretenses he, the said Isaac Himmelstein did then and there unlawfully, knowingly, and designedly obtain from the said Frederick D. Hurley eight hundred and ten dollars of the value of eight hundred and ten dollars, being then and there the property of

App. Div.]

Second Department, April, 1910. the said Frederick D. Hurley, with intent to cheat and defraud the said Frederick D. Hurley, to the great damage of the said Frederick D. Hurley, contrary to the form of the Statutes in such case made and provided, and against the peace of this State, the government and dignity of the same.”

We see that the time, place and jurisdiction are stated, scienter is averred, the intent is charged, the character of the false pretenses is specified, the name of the defrauded person is given, and it is set forth that by color and means of such false pretenses the defendant then and there unlawfully and fraudulently obtained $81). The criticism of the learned counsel for the appellant, in his own language, is as follows: “Not a word that the horse would not have been sold to A. Himmelstein but for those representations; that A. Himmelstein did not pay the note; that the relator did not pay the note; that the complainant relied on the representations and that because he acted in reliance on same he was injured.” I think these objections are fully met and disposed of by the decision in Clark v. People (2 Lans. 329), when like contentions were made. (See, too, People v. Jefferey, 82 Hun, 409; State v. King, 67 N. H. 219; Commonwealth v. Coe, 115 Mass. 481; State v. Butler, 47 Minn. 483; Skiff v. People, 2 Park. Cr. Rep. 139.)

The order should be affirmed.

HIRSCHBERG, P. J., Rich and Carr, JJ., concurred; BURR, J., concurred upon the ground that the sufficiency of the indictment cannot be considered in these proceedings.

Order of the County Court of Kings county affirmed, with ten dollars costs and disbursements.

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