Preston v. Hencken — 9 Abb. N. Cas. 68

Majority

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PRESTON v. HENCKEN.

N. Y. Superior Court ; Special Term,

November, 1880.

Headnote

Examination Before Trial.

A party to the action cannot have an order for his own examination, in his own, behalf before trial, merely on the ground specified in subdivision 5, section 872, of the Code of Civil Procedure,—that he is about to depai't from the State, or so sick, &c., that he will not be able to attend trial.

He must show the materiality of and necessity for such examination.

Motion to vacate order for examination before trial.

• An order that the deposition of defendant, as a witness in his own behalf, be taken, to be used upon the trial of this action, was made by Mr. Justice Feeedhah, upon defendant’s affidavit setting forth particulars as prescribed in subdivisions 1, 2 and 4 of section 872 of the Code of Civil Procedure. That defendant’s testimony as to the facts at issue herein is material and necessary to himself for his own defense to this action, and to maintain his said counter-claim ; and under subdivision 5 of section 872 that “ deponent intends to depart and it is necessary for him to depart from this State, on the evening of the 10th day of the present month, and to go to Kansas City to engage in business and reside there ; and cannot conveniently or without great sacrifice be present at the trial of this action.” On the return day of this order plaintiff’s counsel moved, upon the order and affidavits upon which same was granted, to vacate the said order on the grounds (1), that the provisions of subdivision 5 of section 872 of the Code of Civil Procedure do not apply to a case where the person to be examined is a party to the action, and that right to the examination must be based upon other provisions of that section ; and (2), that the affidavit upon which the order for examination was

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granted is defective, in not complying with requirements of subdivision 4 of section 872, and Rule 89.

Howard Payson Wilds, for motion.

W. J. Butler, opposed.

Although the defendant discloses some reason, though not a controlling necessity, for his examination at his own instance under subdivision 5 of section 872, if that subdivision could be deemed to embrace the case, yet a party to an action being expressly excepted therefrom, the examination cannot be had under it.

The defendant is therefore bound to show a right to the examination under some one of the remaining subdivisions of that section, and, by facts and circumstances, the materiality of and necessity for such examination. This he has not done. The order must be vacated, with $10 costs.

There was no appeal.