Majority
p. 184R. Johnson Irving, Respondent, v. Charles M. Higgins, Appellant. Second Department, March 5, 1909.
Headnote
• Discovery — examination, before trial -s- when moving affidavit insufficient.The plaintiff in an action for libel is not entitled. t,o an -order for the examination of the defendant before trial wiliere the moving" affidavit merely alleges that the testimony is material, and1 necessary to enable the plaintiff to prove that the defendant is the owner of an -automobile which ran over the plaintiff’s son, and certain other matters relevant to the issue which are within tlie defendants knowledge. .
- Appeal by the defendant, Charles M- Higgins, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county ¡of Kings on the 15 th day of October, 1908, denying the defendant’s motion to vacate an order, granted ex parte, as ¡amended, for the examination of the defendant before trial; also from an. order entered in said clerk’s office on - the 30th- day of October, 1908, denying -the defendant’s motion to resettle the said order of October 15, 190%. and also from an order entered on the 12th- day of November, 1908, denying the defendant’s motion to modify the said 'exparte order and the order of October 15, 1908.
Charles M. Stafford, for the appellant.
Gilbert Ray Hawes, for the respondent.
The order- sought to be vacated ivas granted oh the affidavit of' the plaintiff. • The only statement contained in said affidavit bearing
p. 185
on the materiality and necessity of the testimony of the party sought to be examined is the following: “ That the testimony of the above-named defendant is material and necessary to enable the plaintiff to prove that the defendant is and was the owner of the automobile which ran over plaintiff’s son and certain other matters relevant to the issues in this action which are within the knowledge of defendant.” It does not suffice that the defendant state his conclusions. The Code and the rules require that facts and circumstances be stated, showing the materiality and necessity of the testimony. (General Rules of Practice, rule 82; Code Civ. Proc. § 872, subd. 4.) In place of stating his conclusion the moving party must specify facts or circumstances from which the court can draw the necessary conclusions. While the strict rules at one time applied by the courts to these applications have been relaxed, the said court rule and Code provisions have not been changed. (Oakes v. Star Co., 119 App. Div. 358 , and Loewy v. Gordon, 129 id. 459 .)
It is stated in the affidavit upon which the order was granted that the action is to recover damages for an alleged libel, but how the question of ownership of the automobile is relevant or material to any issue involved in the case was not shown.
The order is reversed, and the motion granted.
Hirschberg, P. J., Woodward, Jenks and Gaynob, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.