ant's corporation at the time of his leaving the defendant's employ; that the stock of the Farish-Stafford Company of Connecticut was exchanged for the stock of the Farish-Stafford Company of North Carolina, the defendant now having its place of business in the city of New York. The plaintiff alleges that he entered into a contract with defendant's predecessor, and that defendant assumed all the liabilities under said agreement, and thereafter, on January 4, 1906, the plaintiff subscribed for additional shares of stock in the defendant's corporation, subject to the same terms and conditions which were obtained in the transaction covering the purchase of the first shares of stock; that on February 1, 1908, said plaintiff left the employ of said defendant and offered to sell back to said defendant all stock which said plaintiff held in said defendant's corporation, and said defendant refused to purchase said stock, which stock is of the value of $1,425. Defendant by its answer denies that any such stock was purchased, or that any such agreement was made, but admits that certain shares of stock were purchased from the old company, and that certain stock was purchased on or about January 1, 1906, from the plaintiff, and that the same was sold to it, and said plaintiff accepted a promissory note in part payment therefor in the sum of $1,400.

The plaintiff desires to examine the said president and secretary of the defendant corporation, for the reason that their testimony is material and necessary to establish, on the trial, the transfer of the rights and liabilities of the defendant corporation by its predecessor or assignor, the Farish-Stafford Company, as alleged in the complaint, and as to the exact terms thereof, and this information can be obtained from only one source to deponent's knowledge and belief, to wit, the defendant and its officials, to the effect that the defendant herein took over all the assets and liabilities of the Farish-Stafford Company of North Carolina, and continued the business as a going concern, and carried out its agreements entered into. Plaintiff is ignorant of the fact whether the stock, assets, and liabilities of the Farish-Stafford Company were directly taken over by the defendant, or whether said transfer was effected by intermediaries, and plaintiff expects to prove the facts in detail by the testimony of the defendant and its officials sought to be examined, and that information is within the knowledge of the officials of the defendant. The testimony of said officials is material and necessary for the plaintiff to have upon the trial of this action. Plaintiff intends in good faith to use such examination upon the trial, and requests the defendant to produce on said examination the minute books of the meetings of stockholders and directors of the Farish-Stafford Company, also cash books, journals, ledgers, check books, bank deposit books, balance sheets of 1907, 1908, and 1909, and any other books or papers containing entries of the matters which will disclose the information desired. And the only reason why the books and papers, as aforesaid, are desired by the plaintiff is for the purpose of refreshing the memory of the president and secretary of the defendant and aiding them in the examination, and not for examination or inspection.

The defendant states that it is willing to produce for the benefit of the plaintiff on such examination the balance sheets for the years 1908

and 1909, and states that they will be sufficient to refresh the witnesses' recollection as to any surplus that was in the hands of the defendant. In addition to this, the plaintiff is entitled to the examination of the officials and the books and papers heretofore mentioned for the purpose of refreshing the memory of the officials on the examination. This evidence is material and necessary to the plaintiff to enable him to establish his claim at the trial. Section 870, Code Civ. Proc. A general examination of the defendants in the action may be had at any time, and is not limited to an affirmative cause of action or an affirmative defense set forth in favor of the party desiring that examination. Plaintiff, has complied with sections 871, 872, and 873 of the Code of Civil Procedure, and he is entitled to the examination sought herein. Istak v. Senderling, 118 App. Div. 162, 163, 103 N. Y. Supp. 13. The object of the examination is to get evidence by the plaintiff in proving his cause of action. As was said by Justice Ingraham (writing for the court in Goldmark v. U. S. Electro Galvanizing Co., 111 App. Div. 526, 529, 97 N. Y. Supp. 1078, 1080):

"Where an issue of fact is presented, to be determined upon the trial of the action, and where it appears that a party to the action has knowledge of facts which are material in the determination of that issue, either party to the action under these provisions of the Code is entitled to examine such party and have his deposition taken for use at the trial."

At pages 528, 529, of 111 App. Div., and page 1080 of 97 N. Y. Supp., he says:

"Nor is it an answer to such an application that the party making it can procure the evidence from other persons than of the person whose deposition is required. The statute does not require that it shall appear that the facts sought to be proved cannot be proved by other witnesses, but it authorizes a party to take the deposition of his opponent where his testimony can prove the fact which he desires to establish."

The defendant states that he is unable to produce the books and ledgers in court, as they are too numerous. The court will appoint a referee, should the defendant consent, who shall attend at their place of business, so that when said witnesses are examined the books may be referred to in refreshing the memory of the witnesses, thus avoiding unnecessary inconvenience to the defendant.

The motion to vacate the order for the examination of the witnesses and books is denied, and the examination under the order heretofore granted to proceed. Settle order on one day's notice.

PRINGLE v. MULHOLLAND.

(City Court of New York, Special Term. March, 1909.)

1. MONEY LENT (§ 6*)-COMPLAINT SUFFICIENCY.

A complaint alleging that on a date set out plaintiff's intestate loaned defendant a certain sum of money, which defendant promised to repay, pursuant to an agreement annexed, and that there is a balance due, contains all the elements necessary to maintain an action for money loaned,

irrespective of the alleged annexed agreement, and is not demurrable because it is not annexed or set out in the complaint.

[Ed. Note. For other cases, see Money Lent, Cent. Dig. § 8; Dec. Dig. § 6.*]

2. PLEADING (§ 367*)—MOTION TO MAKE MORE DEFINITE.

A complaint alleging that plaintiff's intestate loaned defendant money, which he promised to repay, pursuant to an agreement annexed, is subject to a motion to make more definite, where such agreement is not annexed. [Ed. Note. For other cases, see Pleading, Dec. Dig. § 367.*]

Action by Agnes M. Pringle, as administratrix of the estate of John Battle, deceased, against James Mulholland. Defendant demurs. Demurrer overruled, with leave to plead over.

Gustave Goodman, for plaintiff.

Robertson, Harmon & Davis, for defendant.

FINELITE, J. Defendant demurs to plaintiff's complaint upon the ground that the same does not state facts sufficient to constitute a cause of action. The complaint is for money loaned to the defendant by one John Battle, plaintiff's intestate. Paragraph 1 of the said complaint is as follows:

"That on or about the 9th day of July, 1904, at the city of New York, the plaintiff's intestate loaned to the defendant above named the sum of $18,000, which the defendant promised to repay, with interest, pursuant to a certain agreement, hereto annexed and marked 'Schedule A,' which is hereby made a part of this complaint."

Defendant contends that his demurrer should be sustained, for the reason that the Schedule A, above referred to, or a copy of the alleged agreement, is not annexed or set out in said complaint, and for that reason the complaint does not state facts sufficient to constitute a cause of action. The court believes that the complaint contains all the elements necessary to maintain an action for money loaned, viz., the loan is set forth, and the date, to wit, July 9, 1904, the promise to repay, that a part thereof has been paid, and that there is still due and owing from the defendant $700 and interest, so if the schedule or agreement was entirely eliminated, and no mention made of it, still the complaint, containing as it does the allegations above referred to, would be sufficient to sustain the action for money loaned.

The better practice, it strikes the court, would be a motion to make the complaint more definite and certain as to the substance of the agreement. "Where the allegation in relation to a written instrument is indefinite in failing to state its date, or as to a fact in relation to the instrument itself, upon which its validity or effect may depend, to enable the defendant to plead such a defense as the statute of frauds, the statute of limitations, etc., * the proper remedy is to move to make the pleading definite in the particulars in which it is indefinite." Pigone v. Lauria, 115 App. Div. 286, 100 N. Y. Supp. 976. The agreement is not annexed to the complaint, and the defendant may desire to inform himself as to a fact in relation to it, and as he is entitled to know its substance a motion will lie to make the complaint more definite in that particular. However, the court is of the *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

belief that the allegations of fact set forth in the complaint are sufficient to apprise defendant just what facts are relied on by the pleader to sustain his right to a recovery.

Demurrer overruled, with leave to defendant to plead over upon payment of costs.

PECK V. MAHER.

(City Court of New York, Special Term. March, 1909.)

TRIAL (§ 13*)—Preferred Causes.

An application for a preference is addressed to the discretion of the court, and the applicant should present some fact other than that the case is one which might be preferred under Code Civ. Proc. § 791; the pleadings not being sufficient.

[Ed. Note. For other cases, see Trial, Cent. Dig. § 32; Dec. Dig. § 13.*] Action by Bayard L. Peck, as assignee of the estate of James V. Geraghty, against Edward A. Maher, Jr. On motion for preference. Denied.

Burke and Fay, for plaintiff.

Edward A. Maher, Jr., pro se.

FINELITE, J. The plaintiff moves for a preference under subdivision 5 of section 791 of the Code of Civil Procedure. It appears from the moving affidavit that the action is brought by Bayard L. Peck, as assignee of the estate of James V. Geraghty, against the defendant, to recover the sum of $902 on several promissory notes made by the defendant to James V. Geraghty, deceased, for money loaned and advanced to said defendant. The answer interposed by the defendant pleads a general denial, and in addition thereto a counterclaim for services rendered as attorney for the plaintiff's assignor at his instance and request in relation to certain real estate owned by the said plaintiff's assignor and concerning the leasing of said real estate in question. From the facts set forth in the moving affidavit the question is presented whether the plaintiff is entitled to a preference under section 791 of the Code of Civil Procedure upon the affidavit and pleadings submitted.

Any application for a preference is one addressed to the discretion of the court, and to the end that it should be exercised favorably or unfavorably to the applicant some fact should be presented to the court other than that the case is one which might be preferred under section 791 of the Code of Civil Procedure. Other facts than the pleadings should be presented to enable the court to exercise its discretion. See Carroll, Adm'x, v. Penn. Steel Co., 96 App. Div. 163, 89 N. Y. Supp. 199; Davis, as Trustee, v. Westervelt, 38 Misc. Rep. 13, 76 N. Y. Supp. 695; Eising v. Young, 38 Misc. Rep. 12, 76 N. Y. Supp. 698; Emerick v. Met. St. Ry., 38 Misc. Rep. 45, 76 N. Y. Supp. 901; Riglander v. Star Co., 98 App. Div. 101, 90 N. Y. Supp. 772. It would be a hardship to other litigants to postpone the trial of their actions, which are now on the trial calendar marked "Ready," wherein the litigants and witnesses are daily in attendance waiting to be assigned to a trial part

for the disposal of their cases, which have long been at issue, until all the actions specified in section 791 are first disposed of. The plaintiff, if he so desires, can move to advance this action to the short-cause calendar, where he can obtain a speedy trial; and, as no special reason is set forth in the moving papers for a preference, the court must deny the motion.

Submit order.

BRENKER v. DLATT et al.

(City Court of New York, Special Term. March, 1909.)

1. REPLEVIN (§ 51*)-MOTION TO VACATE-GROUNDS-WAIVER.

A defect in the affidavit of plaintiff in replevin, not specified in the notice of motion to vacate the writ, cannot be urged as a ground of the motion.

[Ed. Note.-For other cases, see Replevin, Dec. Dig. § 51.*]

2. REPLEVIN (§ 32*)—AFFIDAVIT OBJECTIONS-WAIVER.

Irregularities in a replevin affidavit are waived by excepting to the sureties on the undertaking given by plaintiff.

[Ed. Note. For other cases, see Replevin, Dec. Dig. § 32.*]

Replevin by David Brenker against Moses Dlatt and another. One of the defendants moves for an order vacating the requisition issued to the sheriff. Motion denied, with leave to defendant to make such other motion as he may be advised.

M. & B. Jaffe, for plaintiff.

J. S. Freedman, for defendants.

FINELITE, J. This is a motion made by one of the defendants why an order should not be granted vacating the requisition on replevin issued herein to the sheriff of the county of New York on the 27th of February, 1909, upon the ground that the affidavit on which the said writ was granted fails to set forth facts sufficient to confer jurisdiction on this court to grant such writ, and, further, that said affidavit fails properly to allege the wrongful detention by the defendants of the property described in the affidavit, and for such other and further relief as may be just.

The plaintiff urges two preliminary objections to the moving papers of the defendant, and if these objections are tenable, as urged by the plaintiff, there is no necessity of the court passing upon the merits of the motion. The objections are as follows: First, that the objections to the plaintiff's affidavit in the replevin herein are not distinctly specified in the notice of motion; second, that the defendants, on the 1st day of March, 1909, excepted to the said undertaking which was given to the sheriff on the replevin.

As to the first objection urged, the plaintiff is correct, for the reason that if any defect exists in the affidavit on the replevin, and not specified in the notice of motion to vacate the writ of replevin, defendant cannot urge the same as a ground to vacate the writ of replevin. This seems to have been the settled practice in this department. See Van

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes