1 Pattison et al. agt. O'Connor. stipulation, at the request of the appellant's attorney, which is in these words: "The time for the defendant Dennis J. O'Connor to answer the within complaint is hereby extended twenty days. Dated N. Y., April 6th, 1880. S. E. Brown, attorney for plaintiff." On the thirtieth day of April following the appellant's attorney served on the respondents' attorney a demurrer to the complaint, which was returned on the same day with notice that it was returned, because the time for the appellant to demur had expired before the 30th day of April, 1880. The sole question is whether the stipulation by which the time to answer was extended twenty days had the effect to give twenty days additional time or only fifteen days. The respondents' counsel contends that it only operated to give the twenty days from April 6, 1880, at which time it was dated. This construction, we think, is clearly wrong. The language of the stipulation is: "The time to answer the within complaint is hereby extended twenty days." This gave twenty days in addition to the time already existing, otherwise the time for answering would not be extended for that period. It is a very common thing for attorneys to apply to each other for a stipulation of this kind prior to the day on which the time to answer expires, probably more common than to wait until that day actually arrives, and a question has never arisen where an extension was given in the broad language of this stipulation, because no one, probably, has doubted that an extension of twenty days, given, for instance, the day before the time to answer expired, would enlarge the then existing time by the full twenty days and not by nineteen days only. If the respondents' attorney intended to limit the time of the extension from the date of the stipulation he should have specified twenty days from this date, or have specified the shorter number of days, and that would have left no doubt of the effect of the stipulation. We think the court below erred in holding that the demurrer was not served in time. It was entirely proper to make Shaw agt. Van Rensselaer. the motion requiring the demurrer to be received, instead of delaying until after judgment was en cred and then moving to open the judgment. The latter course might have been taken, undoubtedly, but that fact did not preclude the appellant's attorney from making the motion he did. He was not bound to wait till his client's rights were put in greater jeopardy by an actual judgment against him. And as his right to serve his demurrer within the twenty days extended time is clear and a substantial one, there seems to be no reason to doubt that the order denying its exercise is appealable. We think the order below should be reversed, with ten dollars costs and disbursements, and an order entered directing that the demurrer be received or regarded as well served on the thirtieth day of April. BRADY and BARRETT, JJ., concur. N. Y. COMMON PLEAS. SHAW agt. VAN RENSSELAER. Examination of parties before trial — In action for damages for personal injuries under what circumstances defendant may examine plaintiff — Code of Civil Procedure, sections 872, 873. In an action for damages for personal injuries a defendant may examine a plaintiff before answer if it appear that the facts stated in the affidavit, upon which the application is based, would tend to support a defense. The application will be denied when the affidavit upon which it is based fails to specify the special matters of defense he wishes to examine the plaintiff upon. Special Term, December, 1880. VAN HOESEN, J.-Under the former practice which recognized law and equity as two distinct systems, it was no objection to a bill of discovery that it sought to obtain evidence to be used in an action founded on a tort (Gelston agt. Hoyt, 1 J. C. R., 543; Skinner agt. Judson, 8 Conn., 528). But, Shaw agt. Van Rensselaer. in Gelston agt. Hoyt, chancellor Kent said that only in peculiar cases would the court of chancery sustain a bill of discovery to procure admissions that were to be used merely in mitigation of damages in an action of trespass. The chancellor did not say, however, that where the evidence sought to be elicited was material, a bill of discovery would not be sustained in aid of an action sounding in damages; and the ground upon which he dismissed the bill in that case was, that the evidence desired would not in anywise affect the issue in the action at law. In this case the evidence which the defendant is probably seeking may be material to the issue and important to his defense. He is entitled to show that the injury is not so great as the plaintiff claims, and this evidence he is at liberty to draw from the plaintiff himself. After issue joined the defendant could examine the plaintiff as to the extent of his injuries, and could obtain from the court the aid of a physician to discover, by an inspection of the plaintiff's person, what marks of a permanent character were left by the accident upon the plaintiff's body. The right of the court to order such an examination before trial was carefully considered, and placed upon indisputable ground by judge SAMUEL JONES in a very able opinion in the case of Walsh agt. Sayre (52 How., 334). The right of the court to require a plaintiff in an action for personal injuries to submit to an examination, was considered to be beyond question by the supreme court of Iowa in Scroeder agt. C., R. I. and P. R. R. Co. (19 Albany Law J., 234), and by the New York supreme court in Harold agt. The New York Elevated R. R. Co. (21 Hun, 268). It is not now necessary to determine whether or not the court would order the plaintiff to submit himself to the examination of a physician that the defendant might better frame his answer, for no application for such an examination has been made; but if the defendant will state what he expects to show by the plaintiff, and if it appear that the facts stated would tend to support a defense, an order for the examination of the plaintiff by the defendant's attorney will be made before Ellison agt. Bernstein. answer. The affidavit now presented is so vague in its statements that I am at a loss to discover exactly what "the special matters of defense" are, which the defendant wishes to examine the plaintiff upon. He fails to specify them. I think this application should be dismissed, with costs, but with leave to renew it on other papers. SUPREME COURT. WILLIAM P. ELLISON and RODMAN B. ELLISON agt. ISAAC BERNSTEIN. LOUIS LEVENSON and MICHAEL LEVENSON agt. ISAAC BERNSTEIN. JACOB GLADKE and MORRIS J. GLADKE agt. ISAAC BERNSTEIN. Attachments-What affidavits must show to entitle a person to, under subdivision 2 of section 636 of the Code of Civil Procedure. It matters not what a person believes or disbelieves, the applicant for an attachment under subdivision 2 of section 636 of the Code of Civil Procedure, must show by proof of facts known to the witnesses who testify to them, that the belief in the intent to defraud by a disposition of the property is well founded. In other words the intent so to defraud must be a fair and logical sequence from facts proved. It is not enough that a witness is willing to testify to a fact positively; he will not be allowed to so testify, when it is plain that he can have no actual knowledge on the subject. The sources of information must be given, so that the tribunal called upon to act can see that the facts sought to be proved are established by legitimate testimony. The facts (even if true), that the defendant was insolvent when he made the purchases, that he bought more goods than he needed, and that he failed to disclose his insolvency in the absence of any false statements, are not sufficient to show any intent to defraud. Nor is it any evidence of intent to defraud, that the defendant refused to secure the plaintiffs; so long as the law allows preferences to creditors by a failing debtor, it cannot be proof of intent to defraud, that the defendant intends to do what the law permits. Ulster Special Term, September, 1880. Ellison agt. Bernstein. MOTION by defendant in each of above actions to vacate attachments. F. L. Westbrook, for defendant and motion. John J. Linsen, for plaintiff opposed. WESTBROOK, J.-A motion is made in each of the above entitled causes, to vacate the attachment issued therein. Such motions are founded solely upon the papers on which they were issued, and as the affidavits in the several cases are substantially alike, they will be considered together. The plaintiffs in two of the cases are merchants doing business in the city of New York, and in the third case the plaintiffs are merchants in the city of Philadelphia. The indebtedness in one case was contracted in August, 1879; in another in September, 1879; and in the third in October, 1879. In the one action (that of the Messrs. Gladke) most of the material allegations are on information and belief, but in the other two they are positive. The allegations are: 1st. That defendant was insolvent when he made his purchase, which insolvency he fraudulently concealed with intent to defraud. 2d. That defendant had been "for some years a merchant doing a small business at Kingston and Rosendale, New York." That the defendant at the same time made other purchases on credit of "goods of about the value of $12,000 or $15,000," whilst the amount of goods he "would naturally have required for his fall trade was only the sum of about $3,000.” 3d. That defendant is indebted "to about the sum of $17,000, and his assets are only about half that sum." 4th. That defendant has not paid for his spring purchases, but has notes outstanding therefor. 5th. "That he intends to dispose of his property with intent to defraud his creditors." |