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(178 N.Y.S.) (189 App. Div. 310)

BECKEL V. SALOMON et al. (Supreme Court, Appellate Division, Second Department. October 31, 1919.) 1. DISCOVERY 40EXAMINATION OF DEFENDANT BEFORE TRIAL.

Plaintiff held entitled to examination of one of the defendants before trial as to facts which he was required to establish in order to prove his

cause of action. 2. DISCOVERY 41-LIMITATION OF EXAMINATION OF DEFENDANT BEFORE

TRIAL,

In executor's action to recover certain bonds wrongfully delivered by coexecutor to defendants, without consideration and with knowledge by defendants of wrongful character of transaction, order for examination of one of defendants before trial as to dealings on margin or speculative account, or purchase or sale of securities between defendants and coexecutor, held to give too wide a latitude in the examination, and it should have limited examination to the delivery of particular bonds, with circumstances thereof, consideration, defendants' knowledge of true facts, etc., leaving to judge presiding at examination to determine what questions were relevant thereto.

Appeal from Special Term, Kings County.

Action by George W. Beckel, as executor and trustee, etc., against Arthur K. Salomon, Charles H. Bernheim, and others, copartners, etc. From an order denying a motion to vacate an order directing examination before trial of defendant Charles H. Bernheim, defendants appeal. Affirmed, as modified.

Argued before JENKS, P. J., and MILLS, PUTNAM, BLACKMAR, and KELLY, JJ.

I. Maurice Wormser, of New York City (Stephen C. Baldwin, of Brooklyn, and C. Arthur Levy, of New York City, on the brief), for appellants.

M. Michael Edelstein, of New York City, for respondent.

PER CURIAM. [1, 2] The order authorized an examination as to facts which the plaintiff must establish in order to prove his cause of action. It falls, therefore, within our decision in Oshinsky v. Gumberg, 188 App. Div. 23, 176 N. Y. Supp. 406, and the motion to vacate was properly denied; but we think the order gave too wide a latitude in the examination. The complaint alleges that the coexecutor of the plaintiff, since removed, in violation of his duty, delivered to the defendants 16 New York City 312 per cent. bonds maturing May 1, 1951, and that the defendants received such bonds without consideration, with the knowledge that they belonged to the estate, and not to the coexecutor. The plaintiff claims that for the purpose of establishing these allegations he is entitled to the examination before trial.

The order provided that defendants Bernheim and Salomon be examined as to what dealings and transactions on margin or speculative account, or purchase or sale of securities, the defendants have had with one Isaac Strauss, what collateral, what cash, and particularly what New York City bonds, and the description thereof, the defendants have received from said Strauss, and at what times the defendants have reFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

178 N.Y.S.-14

ceived New York City bonds from said Strauss, together with the numbers and description thereof, what securities defendants have delivered to said Strauss, and what collateral defendants received from said Strauss, together with a full description thereof, and the times the same were so received.

It is obvious that this order permits the examination of the defendant on matters that cannot be material or relevant to the allegations of the complaint. It is difficult to say in advance what evidence would be material or relevant to these allegations; but the order should be confined to the allegations of the complaint, and it should be left to the judge who presides at the examination to determine what questions are relevant thereto. We think the order should be modified, by limiting the examination to the delivery of the 16 New York City 31/2 per cent. coupon bonds, together with the circumstances attending such delivery, the consideration therefor, the state of the accounts between the defendants and Isaac Strauss at the time of the delivery of the bonds, a complete description of the bonds, the knowledge of the defendants as to whether the bonds were held by Isaac Strauss as executor, including the fact that he was executor, the disposition of the bonds made by the defendants and the circumstances attendant thereon, and any' fact relevant to the above-specified subjects of the examination.

The order should be modified, in accordance with this opinion, and, as modified, affirmed, without costs.

(189 App. Div. 886)

COCKAYNE v. HEALEY.

(Supreme Court, Appellate Division, First Department. October 24, 1919.) PLEADING 368—PLAINTIFF REQUIRED TO SEPARATELY STATE AND NUMBER

SEPARATE CAUSES OF ACTION.

Where plaintiff relies upon two causes of action, but fails to separately state and number them, he should, on motion of defendant, be required to serve an amended complaint, either separately stating and numbering the alleged causes of action, or eliminating the one upon which he does not place reliance.

Appeal from Special Term, New York County.

Action by Edmund Cockayne, an infant, etc., against Thomas J. Healey. From an order denying a motion for an order directing the service of an amended complaint, defendant appeals. Reversed.

Argued before CLARKE, P. J., and DOWLING, PAGE, MERRELL, and PHILBIN, JJ.

John A. McQuillan, of New York City (George H. Taylor, Jr., of New York City, on the brief), for appellant.

PHILBIN, J. The plaintiff apparently relies upon two causes of action, but fails to separately state and number them. He should be required to serve an amended complaint, either separately stating and

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(178 N.Y.S.) numbering the alleged causes of action or eliminating the cause of action upon which he does not place reliance.

Order reversed, with $10 costs and disbursements, and motion granted, as above indicated, with $10 costs. Order filed. All concur.

ZIVITZ et al. V. MARYLAND CASUALTY CO.
(Supreme Court, Appellate Term, First Department, October 27, 1919.)
INSURANCE M318—CHANGING CONDITION NOT SPECIFIED IN POLICY OF BURG-
LABY INSURANCE.

Where the schedule made a part of a burglary insurance policy details in question and answer form the representations of assured as to conditions affecting the risk, a provision that changes of condition of the property shall invalidate the policy must be deemed to refer to conditions set forth in the schedule, and where, in the schedule, no representations were made as to iron shutters, the removal of such shutters by insured's landlord and replacing with wire glass was not a change of ma

terial conditions.
Appeal from City Court of New York, Trial Term.

Action by Nathan Zivitz and another against the Maryland Casualty Company. From a judgment of the City Court, entered on a directed verdict for plaintiffs, and from an order denying a motion for a new trial, defendant appeals. Affirmed.

Argued October term, 1919, before GUY, BIJUR, and DELEHANTY, JJ.

James J. Mahoney, of New York City (George J. Stacy, of New York City, of counsel), for appellant.

Max D. Steuer, of New York City (Jerome A. Strauss and Milton S. Cohn, both of New York City, of counsel), for respondents.

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PER CURIAM. As a defense to this action to recover upon a policy of burglary insurance, the defendant pleaded change of "conditions and circumstances” of the risk without the consent of the insurer and in violation of the terms of the policy.

The proof tended to establish that on the night of January 3 or early morning of January 4, 1918, plaintiffs' loft was entered by burglars, who removed a large quantity of clothing therefrom; that the entry was made by making a hole in one of the wire glass windows of plaintiffs' premises and opening the latch on the inside; and it was conceded that at the time the policy was issued there were sheet iron shutters on the windows, but that these shutters had been removed by plaintiffs' landlord in May, 1917, by order of the fire department, apparently without the knowledge or consent of the defendant, and wire glass windows substituted therefor.

At the close of the entire case the defendant moved for the dismissal of the complaint, and plaintiffs asked for the direction of a verdict in their favor; the latter claiming that, as the iron shutters were taken away without the plaintiffs' consent, their rights under the policy were unimpaired. The court, adopting plaintiffs' view of the case,

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directed a verdict for the plaintiffs. Thereupon the defendant asked leave to go to the jury on all the issues, and on the issue that the policy was void if the circumstances and conditions of the risk were changed without the consent of the defendant, and to the denial of this motion an exception was duly taken.

Respondents urge, but do not present any authority in support thereof, that to avoid a burglary policy under the clause in question the change in the conditions and circumstances of the risk must have been brought about by the assured. Clause 6 of the policy provides that, if a change occurs, whether caused by plaintiffs or not, the policy shall be void. It appears, however, that the schedule prepared by defendant and made part of the policy sets forth in detailed question and answer form the representations of the assured as to conditions affecting the risk, and the provision that the policy shall be void if the conditions are changed must be deemed to refer to conditions of risk as set forth in the schedule forming part of the policy, not conditions of which the policy takes no cognizance. In said schedule no representations are made, and no inquiry made as to iron shutters. No change of material conditions under the terms of the policy having been shown, the defense failed, and judgment was properly directed for plaintiffs.

Judgment affirmed, with costs.

(109 Misc. Rep. 152)

SCHACHTER V. SCHACHTER, (Supreme Court, Special Term, Kings County. October 27, 1919.) MARRIAGE 58(7)-FRAUD JUSTIFYING ANNULMENT.

It is not fraud, for which marriage by civil ceremony can be annulled, that the man promised that there should later be a Jewish ceremony, and refused to fulfill his promise; there being no misrepresentation of an existing fact.

Action by Anna Schachter against Harry Schachter. Judgment for defendant.

Ellman & Ellman, of New York City, for plaintiff.

CROPSEY, J. The plaintiff seeks an annulment of her marriage. She bases her complaint solely upon the assertion that

"The defendant falsely and fraudulently represented to her that, if she would procure a marriage license with him and have a ceremony performed by a person other than a Rabbi, or civil ceremony, that he would thereafter enter into a religious ceremony through a Rabbi."

She seeks to support this by her testimony that when she spoke to him of getting married, saying they had been “keeping company" long enough, he replied:

"We shall get married two weeks later, at City Hall, and afterward make up a date for the Jewish wedding."

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(178 N.Y.S.)
They were married at the City Hall, but the defendant refused
later to have a Jewish ceremony—though both he and the plaintiff
are Jews-saying he did not believe in it; that "we should go and
live together without it.” The plaintiff claims she would not have
married him, had he not promised to have later a Jewish ceremony,
and that the marriage was never consummated.

Is there any proof of fraud in this? Did the defendant make any
representation, that was material and of an existing fact? 'A mar-
riage contract may be avoided like any other contract, and especially
if it has not been consummated, when it was procured by fraud. But
the fraud must consist of a false representation, expressly or im-
pliedly made, of an existing fact that is a material consideration to the
wronged party. Here the plaintiff claims the promise of a Jewish
ceremony was vital to her, and she would not have consented to
marry, had the defendant not made it, but the defendant's statement
was merely a promise, and not the assertion of an existing fact. He
did not state that anything was, but only that something would be.
He promised that at a future time, there would be the other service.
No legal fraud arises from such a promise. It is not a representa-
tion. It is a mere forecast or prophecy. It asserts nothing. It only
predicts. The plaintiff was not justified in relying upon it, and can-
not be relieved of the marriage compact, though the defendant failed
to fulfill his pledge.

The cases cited furnish no support. In Moore v. Moore, 94 Misc. Rep. 370, 157 N. Y. Supp. 819, the marriage was annulled, because the defendant, at the time of entering into it, had no intention of living with the plaintiff, and it was held that “intention” was an existing fact, following the decision in Adams v. Gillig, 199 N. Y. 314, 92 N. E. 670, 32 L. R. A. (N. S.) 127, 20 Ann. Cas. 910. But even this rather extreme case does not aid the plaintiff. Here there is no claim the defendant did not intend to live with the plaintiff as her husband. On the contrary, the proof shows otherwise. In Dorgeloh v. Murtha, 92 Misc. Rep. 279, 156 N. Y. Supp. 288, the plaintiff was under the age of consent, and there was the further finding that neither the plaintiff nor defendant intended to be married, and were coerced into having the ceremony performed.

Counsel states that in April, 1919, Mr. Justice Benedict granted an annulment in Weinstein v. Weinstein on the identical grounds urged here. But, he adds, no opinion was written. Without knowing the reasons that prompted that decision, it cannot be accepted as an authority, as it seems to run counter to the general rule.

The complaint must be dismissed, and judgment go for the defendant.

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