
    WILLIAM P. THORP, Respondent v. HENRY A. RILEY, Appellant.
    
      Interrogatories, settlement of, what not considered on, effect of stipulation to admit, appealability of order disallowing.
    
    An order sustaining objections to, and disallowing interrogatories is appealable.
    A stipulation by the objector to interrogatories, which does not, beyond peradventure give to the propounder all the benefit which is sought to be obtained by the interrogatories, and which they might give or avail equally as well to support a pleaded defence, will not avail to sustain an order disallowing such interrogatories, they being pertinent to the issue framed.
    On the settlement of interrogatories the sufficiency of the answer as a defence is not to be considered. The pertinency of the proposed interrogatories to the issue as made is alone to be determined.
    Before Sedgwick, Ch. J., and Ingraham, J.
    
      Decided October 25, 1888.
    Appeal from order disallowing certain interrogatories, proposed by defendant to be attached to a commission to be issued in behalf of defendant.
    This action is brought to recover $1,000, balance of $2,500, given to defendant by plaintiff while an infant for investment in certain classes of securities under an agreement dated September 24, 1885.
    The answer set up among other things as a defence :
    
      “ That between August 1, 1885, and November 24, 1885, plaintiff had frequent consultations with defendant and requested his advice and assistance in starting him in the banking business in the northwest, plaintiff desiring to invest as capital in such business the sum of $10,000 or thereabouts. ■ That defendant pursuant to said request rendered personal services to plaintiff almost continuously during said period of time.
    
      
      “ That it was then agreed that defendant to still further carry out plaintiff’s desires should visit the northwest in his company.
    “ That thereupon it was further agreed between the plaintiff and defendant that if the former should secure a business in the northwest, that then the latter should receive as compensation for his services an interest of $1,000 in such business, on which he should receive his proportionate ratio of profits, but that if plaintiff did not so secure a business defendant should pay his own expenses and receive no compensation.
    “ That in pursuance of said agreement defendant visited the northwest in plaintiff’s company in the latter part of November, 1885, and as a result of defendant’s efforts plaintiff in December, 1885, secured a business in the northwest and became part owner and president of a bank in Iroquois, Dakota.
    
      “ That in the early part of December, 1885, plaintiff and defendant entered into an agreement, whereby it was agreed that in consideration of defendant giving up his claim to an interest of $1,000 in the business so secured by the plaintiff, defendant should receive the sum of $1,000 in cash, being the balance of said original deposit of $2,500, after deducting therefrom the sum of $1,500 which defendant then agreed to send to plaintiff, and defendant thereupon gave up his claim to said interest in said business.
    
      “ And defendant alleges that by virtue of the agreements aforesaid plaintiff has received emoluments and advantages of the value of $1,000 which he still retains, and that he has never restored, or offered to restore same to the defendant.”
    Upon the settlement of interrogatories to be annexed to a commission to be issued for the examination of a witness on behalf of defendant, a number of interrogatories designed to show plaintiff’s connection with the bank of Iroquois, that the business of that bank had been a successful and paying one, that its future prospects were bright, that it had made large profits, and had made dividends, and to show the value of its stocks, were objected to by the plaintiff; and on plaintiff’s stipulating that the banking business obtained by the plaintiff in Iroquois, Dakota, was of the value of one thousand dollars, the objections were sustained and'the interrogatories disallowed and a special term order entered to that effect.
    
      A. Walker Otis, attorney and of counsel for appellant, argued:—
    I. The interrogatories which were stricken out were all material, and should have been allowed. (1.) Infancy in no way avoids the defence. 2 Kent, 240 ; Holmes v. Blogg, 8 Taunton, 508; Medbury v. Watrous, 7 Hill, 111; Bartholomew v. Finnemore, 17 Barb. 428; Green v. Green, 69 N. Y. 533 ; Crummey v. Mills, 40 Hun, 370; Gray v. Lessington, 2 Bos. 263 ; Hangen v. Hachmeister, 49 N. Y. Super. Ct. 24. (2.) Plaintiff’s offer to stipulate that the banking business obtained by plaintiff in Iroquois was of the value of $1,000, did not warrant the striking out of the interrogatories. Such a stipulation is of no value to defendant. As plaintiff was to put $10,000 in the bank, the “business” was doubtless worth that sum.
    H. Even if there were doubt as to the materiality of the interrogatories, it was error for the court below to strike them out on settlement. The question should have been reserved for the trial judge.
    The code provides that upon the settlement of the interrogatories “ either party must be allowed to insert therein any question pertinent to the issue which he proposes” (sec. 892) and that when the depositions taken are read at the trial “an objection to the competency or credibility of the witness or to the relevancy or substantial competency of a question put to him”.....“may be made as if the witness was then personally examined and without being noted upon the deposition ” (sec. 911). The judge on settlement cannot foresee what the exigencies of the trial may be, and questions which may from his standpoint seem immaterial, may become of the greatest importance when the actual trial occurs. When the question in good faith presented is whether a certain question is relevant, material or competent, the better practice is to settle the interrogatories subject to objections at the trial. Under such a practice, the questions will be passed upon by the judge who has the best opportunity for doing so, and no injustice will be done either party, for the reason that all the rulings can be reviewed on appeal from the judgment, whereas if an error be made by the judge, on settlement by disallowing an interrogatory, the aggrieved party is remediless if the cause shall come on for trial before an appeal from the order striking out the interrogatory can be heard, unless he can procure a stay of the trial pending such appeal. In a case where an appeal from an erroneous ruling on settlement of interrogatories was carried to the court of appeals, that court say that conceding the right of the judge to do so, “the power to exclude questions should be sparingly exercised.” Uline v. N. Y. C. & H. R. R. R. Co., 79 N. Y. 175.
    
      Francis Speir, Jr., attorney and of counsel, and John H. Kitchen, of counsel, for respondent, argued :—
    I. Admitting for the sake of argument the facts set up in the answer it cannot be shown that the value of the business of the bank during the year 1885, or its prospective value, or the amount of capital contributed by the plaintiff, or what his salary was, or the plaintiff’s interest, the names of its present officers, its original incorporators, or dividends paid, or its undivided profits, or its surplus, or finally that the plaintiff was dissatisfied with Irbquois, Dakota, as a place of residence and why, are material in any conceivable case to the issues raised by the pleading in this case especially in view of the stipulation tendered in open court.
    II. It is undoubtedly a rule of law that an infant cannot be permitted to retain property purchased by him, and at the same time repudiate the contract by which he received it. But taking the strongest view of the case in the defendant’s favor, it will be seen by the answer that he never had any interest in the Iroquois Bank, and it would be unjust to the officers and stockholders of said bank, and to this plaintiff, to force them to give a full history of the bank from its incorporation to the present time.
    III. An infant has the right to repudiate a contract like the alleged contract set forth in the answer. No property was taken from the defendant and he has retained one thousand dolía,rs of the infant’s property, which he admits was deposited with him as trustee for a specific purpose. His own statement is that he parted with nothing that did not belong to the infant. How then can it be material to investigate the interest of the plaintiff in this bank, in which the defendant never had an interest. The only question in this case is, did the plaintiff agree to pay the defendant one thousand dollars or did the defendant violate his trust and con- • vert the one thousand :dollars to his own use. The question as to the value of the interest of the plaintiff in the Dakota Bank, is not material, non constat, the history of the bank since its foundation or its officers and business condition. Besides and beyond all this, plaintiff tendered a stipulation to defendant, stating that the business was worth $1,000, but objected to the evidence of this as immaterial to the issues in this case.
    IV. This order is not appealable and could only be reviewed on appeal from the judgment entered after trial. To allow an appeal at this time from those interrogatories which are disallowed would be having this court possibly pass twice upon the same question. Uline v. N. Y. C. & H. R. R. Co., 79 N. Y. 179; MacDonald v. Garrison, 9 Abb. Pr. 178.
   Per Curiam.

The disallowance was made upon the settlement of the interrogatories and an order disallowing the interrogatories was entered. Uline v. N. Y. C. & H. R. R. Co., 79 N. Y 179, determines that such an order can be reviewed upon appeal.

The order did not disallow the interrogatories absolutely, as not pertinent to the issue. They appear to be pertinent to the issue. They were disallowed on the condition which was complied with, that plaintiff should file a stipulation “ that the banking business obtained by the plaintiff in Iroquois, Dakota, was of the value of $1,000.”

It does not with certainty and beyond doubt appear, that this admission would avail to support the answer as much, as would answers to the interrogatories, if they should be favorable to defendant. Assuming, but not deciding, that the defendant might be forced to take an admission of a fact instead of evidence of the fact, there should be no manner of doubt that the admission would benefit the defendant to the same extent that the evidence would.

On the issues as made, the fact that the business was worth only $1,000, would not be as important to defendant as proof that it was worth $10,000 or more than $1,000. There might be at least, under the evidence, circumstances which could be considered by a jury, as to the probability that the plaintiff made the arrangement pleaded in the answer.

On the settlement of interrogatories the sufficiency of the answer, as a defence, should not be considered. The pertinency of the proposed interrogatories to the issue as made, is alone to be determined. In the present case, the proposed admission did not embrace profits from the business acquired by the plaintiff. Answer to the interrogatories might have disclosed that plaintiff did receive profits, and the answer set up as a defense the receipt of such profits.

The order should be reversed with $10 costs and the interrogatories excluded should be allowed.  