
    Walton v. Godwin.
    
      (Supreme Court, General Term, First Department.
    
    November 7, 1889.)
    I. Depositions—Interrogatories.
    In an action for alleged breach of a contract by a corporation, by discharging plaintiff’s assignor from its service, plaintiff sought to charge a director of the corporation under Laws N. Y. 1875, c. 611, § 31, on the ground that he had signed a report of the corporation containing false representations as to its stockholders and financial condition. Defendant’s answer alleged that he signed the report in the belief that it was true and correct, and that the contract with plaintiff’s assignor was annulled, according to its terms, on the ground of his incompetency, at the time of the alleged breach, Held, that it was proper to allow cross-interrogatories by plaintiff, on defendant’s taking a deposition, as to whether the corporation at or about the time of the alleged breach, and before the report, had not failed financially, and soon after had a receiver appointed, whether its assets were not then transferred to another company, and whether it did not then discharge all of its employes because of its failure.
    3. Same.
    But questions as to whether a portion of such employes were not re-employed by the other company, under the same general manager, and whether deponent and another director, whose business it was to determine such things, had ever decided that certain other employes of the first company were incompetent are improper.
    Appeal from special term, New York county.
    Action by Frank Walton against Parke Godwin, as a director of the American Opera Company, Limited, a domestic corporation incorporated under Laws N. Y. 1875, c. 611. Plaintiff claimed under an assignment to him by Henry Bates of a claim against the corporation for alleged breach of a contract by discharging said Bates from its employ as an opera singer on December 11, 1886. Plaintiff sought to recover from defendant on the ground that he was liable for the debts of the corporation under the act of 1875, § 21, because he had signed a report of the corporation dated January 3, 1887, which plaintiff alleged contained false statements as to its stockholders and financial condition.. Defendant answered, and alleged that he signed the report believing that it was true and correct, and that Bates was discharged and his contract annulled by the corporation on December 11, 1886, on the ground of his incompetency, for which ground the contract provided that it might be annulled. A commission issued to take the deposition of Jacques Bouhy, of Paris, France, as a witness for defendant, and defendant excepted to the following cross-interrogatories proposed by plaintiff: “Eighth. State whether or not the American Opera Company, Limited, failed financially on or about December 11,1886, and whether or not it ever produced any public performance of opera after that date; and, if not, state why not, so far as you know. Did it not then retire from business as an opera company, and fail to pay its obligations, and go into liquidation, and was not a receiver soon thereafter appointed by the court in an action brought by a creditor to sequestrate its property to pay its debts? Ninth. What became of the property and assets of the American Opera Company, Limited, after December 11, 1886, so far as you know? Were they not then mostly transferred and delivered to another company, formed about that time under the laws' of New Jersey, called the ‘National Opera Company, Limited,’ and did not that National Company also soon thereafter fail financially, and go also into the hands of a receiver in sequestration proceedings? Tenth. Were not all the employes and singers of the American Opera Company, Limited, discharged by it on or about December II, 1886, on account of its said financial failure, if any, and were not a portion of them re-employed by the said National Opera Company under the same general manager, Charles E. Locke, who had previously acted as general manager of the American Opera Company, Limited ? ” “Fourteenth. State whether or not you and Theodore Thomas, acting as the vocal and musical directors of the American Opera Company, Limited, about December 11,1886, or ever, adjudged and determined together and decided that either of the following named persons then employed by said company was then incompetent to sing or perform his or her parts as provided by their contracts with said company, namely: John E. Brand, Alfred W. Young, Joseph C. Elliott, William Parry, James J. Boyle, Alice Hawkins, Alice Bichards, Buth Torbett, Jessie Watson, Jessie Woods, Jennie Woods, Georgie Girard, May Warren, Hattie Patterson, and Emily Stanly. ” From the allowance of these interrogatories defendant appeals
    Argued before Van Brunt, P. J„ and Brady and Daniels, JJ.
    
      ff. Washbourne Smith, (Nelson Smith, of counsel,) for appellant. W. W. Badger, for respondent.
   Van Brunt, P. J.

Although it is true that the general rule is to allow all interrogatories which may be propounded under a commission, leaving the question of the admissibility of the evidence to be determined at the trial, where it can be much better and more intelligently done than upon the settlement of the interrogatories, yet where an interrogatory is clearly irrelevant, and is apparently put for the purpose of eliciting information in no way connected with any issue presented by the pleadings in the action, such interrogatory should not be allowed. Applying this rule to the interrogatories now before the court, and which are put by the plaintiff by way of cross-examinatian, it would appear that no error was committed in the allowance of the eighth, ninth, and the first paragraph of the tenth. There were issues presented which related to the good faith of the opera company in theehange; of plaintiff’s assignment; and also to the truth of the statements contained in the report signed by the defendant as to the assets of the opera company; and these interrogatories were pertinent to these issues. The last clause of the tenth interrogatory and the whole of the fourteenth seem to be improper. The fourteenth in no way tended to elicit any evidence in any way connected with the issues presented in this action, but seems to have been put for the purpose of procuring information which might affect other claims which had been or might be presented against the signers of the report in question. The order appealed from should be modified, disallowing the last clause of the tenth interrogatory, and the whole of the fourteenth, and as so modified affirmed, without costs. All concur.  