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EDWARD M. EDENBAUM v. COOK'S TRAVEL SERVICE ET AL. (10/03/68)
CIVIL COURT OF THE CITY OF NEW YORK, SPECIAL TERM, NEW YORK COUNTY
1968.NY.42974 <http://www.versuslaw.com>; 293 N.Y.S.2d 842; 57 Misc. 2d 993
October 3, 1968
EDWARD M. EDENBAUM, ALSO KNOWN AS NATHAN M. EDENBAUM, PLAINTIFF,v.COOK'S TRAVEL SERVICE ET AL., DEFENDANTS
Campbell & Katz for plaintiff.
William T. Condon for Cook's Travel Service, defendant.
Gary A. Beller for American Express Company, defendant.
Shearman & Sterling for First National City Bank, defendant.
Maurice Wahl, J.
The plaintiff herein seeks to recover from American Express Company, First National City Bank, and Cook's Travel Service the sum of $760. Between 1954 and 1966 the plaintiff purchased numerous travelers checks from each of these companies. On March 19, 1968, it is claimed that a number of travelers checks remained uncashed. The plaintiff kept no records of the exact dates of the purchases, or the specific amount purchased from each company, or of the serial numbers of the travelers checks in question.
Plaintiff alleges that on the evening of March 19, 1968, his law offices were burglarized and $1,140 in travelers checks were taken from his office safe. After the burglary the plaintiff notified the respective companies of the alleged loss, seeking reimbursement for the stolen checks. A refund of $380 was subsequently made by American Express Company, leaving a balance of $760 outstanding.
It is claimed by the plaintiff that the travelers checks were originally purchased in denominations of $10 and $20 and that the purchases were made in cash. Plaintiff also has specified the branch offices of the respective companies where the purchases were made.
At this stage in the proceeding, plaintiff has noticed the respective defendants for examination before trial to be conducted on separate days. He has demanded that the defendants produce at the time of the examination the following records: (1) all records directly or indirectly connected to the transactions between the plaintiff and said defendant, between the years 1954 and 1968; (2) records of all checks sold by defendants in the Borough of Manhattan and all checks cashed and honored between the years 1954 and 1968; and (3) all written material disseminated or issued by said defendants in connection with and for the purpose of inducing the public at large and the plaintiff to enter into a contract to purchase the checks from said defendants.
Each defendant herein has moved separately for a protective order against the projected examination before trial of themselves under the notices served upon defendants for each of their examinations before trial.
A careful review of each of the moving papers readily reveals a pattern of similarity of approach, viz., that unless plaintiff furnishes each defendant with minute and exact dates of purchase and serial numbers of the checks, then defendants by this procedural device of a protective order could in absence of such compliance by a purchaser of such checks deprive the plaintiff of the right of recovery.
How many purchasers of such checks are really advised and thus put on notice of the conditions imposed by the sellers thereof, that in the event of loss, exact dates, serial numbers and other such precise and detailed information is a condition precedent, as defendants would like it to be, for a recovery?
The standard of measure to be used is the skill, knowledge and sophistication of the usual everyday man -- not of an expert accountant nor data-keeping automation.
In order to induce the purchase of vast amounts of these types of currency medium, defendants have engaged in extensive advertising in all media of their product, to wit, travelers checks. Travel brochures, folders, newspaper and periodical advertisements and other forms of invitations are extended to buyers, that for a fee, defendants would safeguard such purchasers' funds against the risks of loss, theft or forgery, and other grounds. Many of the advertisements emphasize immediate payment of the loss without indicating the need of supplying the serial numbers, exact date of purchase and other fine details.
Examination of the pleadings here readily reveals that issues are present which plaintiff must prove in order to establish his cause of action.
The liberal and extensive use of the discovery and disclosure procedures of the CPLR was enacted to make the archaic and ancient preciseness in the wilderness of litigation a condemned procedure. Both sides are afforded a liberality of disclosure so that a cause may be fairly and honestly tried on the merits. Technicalities are discarded.
Furthermore, the mere fact that special defenses are pleaded, i.e., limitation of time, does not admit of the curtailment of the disclosure device. Inter alia, the question raised thereby is, when did plaintiff's cause of action arise?
Defendant Cook's motion stresses the proposition that an alleged condition precedent, viz., the supplying of the specific information by plaintiff would obviate the examination before trial. To state the proposition is to demonstrate its sophistry. Likewise such is First National City Bank's position and that of American Express Company, and all three complain that their respective ...