McKeand v. Locke — 115 A.D. 174

Majority

p. 174

William B. McKeand, Respondent, v. Charles E. Locke, Appellant.

First Department,

October 19, 1906.

Headnote

Deposition — examination of party before trial — former technicalities discountenanced.

The technical rules surrounding the practice of examining a party to an action before trial are abolished, and in the absence of bad faith or abuse of process a party is entitled to examine his adversary before trial as to facts material to the issues and of which the adversary has knowledge. It is no answer that the moving^ party can procure the evidence from other persons or subpoena his opponent on the trial.

p. 175

Appeal by the defendant, Charles E. Locke, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 6th day of June, 1906, vacating a prior order for the examination of the plaintiff before trial.

Louis F. Doyle, for the appellant.

Edgar J. Nathan, for the respondent.

This order must be reversed and the order for the examination of the plaintiff reinstated on the authority of Goldmark v. U. S. Electro-Galvanizing Co. ( 111 App. Div. 526 ), recently decided by this court.

That decision sweeps away many technical rules which were fast growing up in the practice of - examining one’s adversary before trial, and establishes the rule for this department that in the absence of bad faith or abuse of .process a party to an action is entitled to examine his adversary before trial as to facts which are material to the issues, and of which he has knowledge, and take his deposition for use on the trial; and that it is no answer to such application that the party making it can procure the evidence from other persons, or could subpoena his opponent for the trial.

This decision was not called to the attention of the learned judge who presided at the Special Term, as it was not then published. An observance of it, however, in the future by attorneys will save many needless motions and appeals.

The order is reversed, with ten dollars costs and disbursements, and. the order for examination of plaintiff reinstated.

Present — O’Brien, P. J., Ingraham, Clarke, Houghton and Scott, JJ.

Order reversed, with ten dollars costs and disbursements, and order for examination of plaintiff reinstated. Order filed.