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Cycle Co., 9 App. Div. 579, 41 N. Y. Supp. 710. This is particularly true where a fair presumption arises that the fact positively averred could not have been within the personal knowledge of the affiant. Of course, it is possible that the plaintiff may have discovered the defendant and his wife in the perpetration of the wrong, and thus had personal knowledge. If such was the fact, we think he should have so stated. The charge of continued and repeated defilement tends to negative the idea of discovery in such a manner. The affidavit, in our opinion, was insufficient, and the motion to vacate should have been granted.

The order appealed from must be reversed, with $10 costs and disbursements, and the motion to vacate the order of arrest granted, with $10 costs. All concur.

(121 App. Div. 692.)

PEOPLE v. KIPP.

(Supreme Court, Appellate Division, First Department. October 25, 1907.) LARCENY-EVIDENCE-SUFFICIENCY.

Evidence held to sustain conviction.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 32, Larceny, §§ 149178.]

Appeal from Court of General Sessions, New York County.

Charles Kipp and another were convicted of petit larceny, and Charles Kipp appeals. Affirmed.

Argued before PATTERSON, P. J., and INGRAHAM, LAUGHLIN, CLARKE, and HOUGHTON, JJ.

Henry Hardwicke, for appellant.

Robert S. Johnstone, Deputy Asst. Dist. Atty., for respondent.

INGRAHAM, J. The defendants Kipp and Feingold were tried together for petit larceny. The articles stolen were shoes, of the value of $23, that the owner had intrusted to a boy in its employ to deliver to customers. This boy testified that while in possession of the shoes, at the corner of Grand and Allen streets, in the city of New York, the defendant Feingold met the boy and asked him to go on an errand; that the boy left the bundle of shoes with another boy that was with him, and that when he came back from the errand the bundle of shoes was gone; that in this bundle there were 10 pairs of shoes, the property of William G. Smith & Co. The defendant Kipp was not present at the time. A police officer testified that he arrested the two defendants in a furnished room at 229 Chrystie street; that the two defendants had two pairs of the shoes in their possession; that he asked Feingold, in the presence of the defendant, where he got them, and Feingold said that Kipp told him he could get a cheap pair of shoes, and he went to Kipp's house to get them; that Kipp said that Feingold's statement was true.

Upon this evidence the court found both of the defendants guilty, and I think the evidence was sufficient to sustain the conviction. Kipp and Feingold together were in possession of stolen goods, and, when

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Feingold said that Kipp told Feingold that he could get a cheap pair of shoes, went to the house in which they were arrested for that purpose, Kipp said that that was true. From this the court was justified in finding that Kipp was in possession of the shoes and was a participant in the larceny. The case is ruled by the cases of Knickerbocker v. People, 43 N. Y. 177, and People v. Wilson, 7 App. Div. 326, 40 N. Y. Supp. 107, affirmed in 151 Ñ. Y. 403, 45 N. E. 862.

The judgment should therefore be affirmed. All concur.

(55 Misc. Rep. 133.)

MAHR v. LIVINGSTONE.

(Supreme Court, Trial Term, New York County. June, 1907.) REPLEVIN-WHEN MAINTAINABLE.

Plaintiff, in actual possession of personalty, cannot maintain replevin therefor.

[Ed. Note. For cases in point, see Cent. Dig. vol. 42, Replevin, § 81.] Action by Caroline S. Mahr against William H. Livingstone. Judgment for defendant.

A. Thain, for plaintiff.

Wesselman & Kraus, for defendant.

GREENBAUM, J. Replevin is essentially a possessory action, and it is requisite for the maintenance thereof that the defendant should be in possession or control of the chattels sued for at the time the action is commenced, except where the same have been wrongfully disposed of. Sinnott v. Feiock, 165 N. Y. 444, 59 N. E. 265, 80 Am. St. Rep. 776; Wheeler v. Allen, 51 N. Y. 37, 42; Christie v. Corbett, 34 How. Pr. 19; Alaske Untersteutzung Verein v. Wall, 28 Misc. Rep. 174, 58 N. Y. Supp. 1115. It is undisputed that at the time that this action was commenced the chattel sought to be recovered was not in the possession or control of defendant, but, on the contrary, that the same was in the actual possession of plaintiff. Under these circumstances the complaint must be dismissed upon the merits.

Complaint dismissed upon the merits.

(121 App. Div. 636.)

WOOD v. FLAGG.

(Supreme Court, Appellate Division, First Department. October 25, 1907.) 1. DISCOVERY-EXAMINATION OF PARTY BEFORE TRIAL-NEGLIGENCE-ACTIONS. Ordinarily defendant in a negligence action may not examine plaintiff before trial as to the general issues in the action, although, if the complaint is not specific in that regard, he may obtain a bill of particulars setting out the theory upon which he is sought to be held liable.

[Ed. Note. For cases in point, see Cent. Dig. vol. 16, Discovery, § 53.] 2. SAME QUESTIONS IN CONNECTION WITH PHYSICAL EXAMINATION.

In connection with a physical examination of plaintiff before trial, defendant may examine him under oath as to the character and extent of his injuries.

[Ed. Note. For cases in point, see Cent. Dig. vol. 16, Discovery, § 54.]

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3. DEPOSITIONS-PHYSICIAN MAKING PHYSICAL EXAMINATION-NECESSITY. Where a physician making a physical examination of plaintiff before trial is not a party to the action, and is not shown to be sick or infirm and no necessity for taking his deposition is shown, as expressly provided by Code Civ. Proc. § 872, subd. 4, the taking of his deposition before trial should not be allowed.

[Ed. Note. For cases in point, see Cent. Dig. vol. 16, Depositions, §§ 26-29.]

Appeal from Special Term, New York County.

Action by Bertram Wood against Ernest Flagg. From an order (106 N. Y. Supp. 910) refusing to modify an order for examination of plaintiff before trial, he appeals. Modified and affirmed.

Argued before PATTERSON, P. J., and INGRAHAM, LAUGHLIN, CLARKE, and HOUGHTON, JJ.

Moses Feltenstein, for appellant.
Robert C. Beatty, for respondent.

HOUGHTON, J. The action is to recover damages for personal injuries received in a building belonging to the appealing defendant. An ex parte order was obtained requiring the plaintiff to submit to a physical examination with respect to his injuries, and that the deposition of the examining physician be taken thereon, and, in addition, that the plaintiff be examined concerning the facts and circumstances of the accident and all matters pertaining to the issues of the action. The plaintiff was content with the order for a physical examination, but moved to strike out that part of the order permitting an examination of himself as to the general issues and the taking of the deposition of the physician. The taking of the deposition of the physician making the physical examination was eliminated, and the order was confirmed with respect to the examination of plaintiff.

In the furtherance of justice and for the expedition of trials, this court has swept away many of the technical objections to the examination by a party of his adversary before trial. Goldmark v. U. S. Electro-Galvanizing Co., 111 App. Div. 526, 97 N. Y. Supp. 1078; McKeand v. Locke, 115 App. Div. 174, 100 N. Y. Supp. 704. It has not yet, however, committed itself to the broad proposition that in a negligence action the defendant may examine the plaintiff before trial as to all the issues of the action, and thus obtain his version of the happening of the accident. The fundamental rule that the testimony sought must be material and necessary for the use of the party applying upon the trial of the action has not been abrogated, as was recently pointed out in Oakes v. Star Co., 119 App. Div. 358, 104 N. Y. Supp. 244. It is quite improbable that a defendant in a negligence action could in good faith say that he intended to use the deposition of the plaintiff upon the trial of the action, or that such testimony was material and necessary for his defense. Such an instance might occur, but the probability that the plaintiff's testimony would be such as would tend to fasten liability upon the defendant is so great as to negative any assertion by the defendant that he intended to use it, or that it was necessary for him to have it for that purpose. The framers of general rule 82 of the court had in mind the possibility of the

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abuse of the privilege of examining an adversary before trial when they provided by that rule that the party asking the examination must show its materiality and necessity. This rule only emphasizes the provision of subdivision 4 of section 872 of the Code of Civil Procedure, that it must appear that such testimony is material and necessary to the party making the application. The provision permitting the examination of an adversary before trial is a useful and salutary one, which should not be abused. On proper application, if the complaint is not specific in that regard, the defendant in a negligence action can obtain a bill of particulars which will state the claim of the plaintiff as to how the accident happened, and in what respect the defendant is claimed to have been negligent, and thus get the theory upon which the plaintiff seeks to hold him liable. Dwyer v. Slattery, 118 App. Div. 345, 103 N. Y. Supp. 433. This, we think, in ordinary cases, is all the defendant is entitled to have. A general rule permitting a defendant in a negligence action to examine the plaintiff before trial as to the general issues in the action might result in very grave abuse and in the manufacture of unconscionable defenses. While we do not say that under no circumstances can a defendant examine a plaintiff before trial in a negligence action, we do hold that in ordinary actions such an examination should not be permitted. The defendant, in connection with the physical examination, was entitled to examine the plaintiff as to the character and extent of his injuries, and to that extent only.

The defendant appeals from that part of the order which struck out the provision for taking the testimony of the physician who made the physical examination. The physician is a third party, and it is not alleged that he is sick or infirm, or that there is any necessity for taking his deposition for the purpose of preserving his testimony. His deposition should not have been directed to be taken, and the order striking out the requiring of it to be done was proper.

The order appealed from should be modified by striking out the provision as to the examination of plaintiff, and inserting in place thereof the following:

"Ordered that the examination of the plaintiff under oath be limited to inquiries as to the nature and extent of the injuries complained of, and the peculiar manner in which the injuries were received, so far as necessary to enable the defendant to ascertain the nature and extent of such injuries."

And, as so modified, the order is affirmed, without costs of this appeal to either party.

PATTERSON, P. J., and LAUGHLIN and CLARKE, JJ., concur.

INGRAHAM, J. This is an action to recover for personal injuries, and the order requires the plaintiff to appear before a referee and submit to an examination concerning the facts and circumstances of the accident alleged in the complaint to have happened to the plaintiff, and, concerning any other matter relative to the issues in this action, and at the same time to submit to a physical examination by a physician appointed by the court to make such examination. Subdivision 4 of section 872 of the Code of Civil Procedure provides that the person de

siring to take a deposition must present an affidavit, setting forth the name and residence of the person to be examined, and that the testimony of such person is material and necessary for the party making the application, and, if the action is to recover damages for personal injuries, that the defendant is ignorant of the nature and extent of such personal injuries. Section 873 provides that in every action to recover damages for personal injuries the court or judge in granting an order for the examination of the plaintiff before trial may, if the defendant apply therefor, direct that the plaintiff submit to a physical examination by one or more physicians or surgeons to be designated by the court or judge.

The affidavit of the defendant complies with this provision of the statute. The defendant has no knowledge of the accident, and no knowledge of the way in which the plaintiff came to be injured; and the only person who, so far as appears, has such knowledge, is the plaintiff. The facts as to the accident are material on the trial of the action; and, as the plaintiff has knowledge of such facts, the defendant is given the right to take his deposition before trial. The owner of the house and the contractor doing the work are both made defendants and charged with negligence from which has resulted the plaintiff's injuries; and it is quite evident that the testimony of the plaintiff is material for this defendant who made this application to prove. that, if there was negligence, it was his codefendant who was guilty, and that he was not. The house at the time of the accident was partly constructed and was in the possession of the contractor, who is a codefendant, and the affidavit upon which this order was granted states that this defendant is seeking such examination in good faith, and intends to use the same in establishing his defense at the trial of the action. Upon the appeal of the plaintiff, therefore, the order should be affirmed.

There is also an appeal by the defendant from so much of the order as strikes from the order of examination the provision that the testimony of the physician who was to make the physical examination should also be taken. I do not know of any provision of the statute which justifies such an order. This practice seems to have been applied in Bell v. Litt, 12 App. Div. 626, 42 N. Y. Supp. 112, but there is nothing to show that this point was discussed, and I do not see how we can order the testimony of a person not a party to the action, except by complying with subdivision 5 of section 872 of the Code, that the witness is sick or infirm, or there are some other special circumstances which render it proper that he should be examined as prescribed in the article. The knowledge acquired by the physician during the examination is no different from the knowledge acquired by a physician who examines a patient under other circumstances, and any party can procure the testimony of this physician by calling him upon the trial. The order should be affirmed, but, as both parties appeal, without costs.

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