Reynolds v. Callan — 134 A.D. 732

Majority

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Marcus T. Reynolds, Respondent, v. Peter J. Callan, Appellant, Impleaded with Irwin E. Wallerstein, Defendant.

Third Department,

November 10, 1909.

Headnote

, Deposition — examination of party before trial — insufficient affidavit.

A plaintiff, suing codefendants for work, labor and services rendered, is not entitled to an order for the examination of one of the defendants before trial where his affidavit merely states that he has no knowledge of the relation existing between the defendants or whether one was the agent of the other, etc., and that it will be unsafe for him to proceed to trial without a disclosure of such relationship, and no facts are alleged showing that the testimony of the person sought to be examined is material and necessary.

Appeal by the defendant, Peter J. Gallan, from an order, made by the Albany county judge on the 14th day of July, 1909, and entered in the office of the clerk of the county of Albany, denying a motion to vacate an order for the examination of the defendant Wallerstein before trial.

The action was brought to recover the value of services rendered and material furnished by the plaintiff, as an architect. The complaint alleges that “ the plaintiff rendered services to and for the defendants at the defendants’ request and on their promise to pay for the same, as an architect, and on like request and promise to pay therefor furnished materials necessary and proper to and about said work, labor and services.” The defendants answered separately, each denying the allegations of the complaint. In the affidavit

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upon which the order for the examination was granted, it is stated “ That this deponent has no knowledge of the relations existing between the two defendants aforesaid or whether or not either of such defendants was the agent for the other during the happening of the events set forth in the complaint, the allegations of which complaint are true and which allegations are hereby incorporated into and made a part of this affidavit with the same force and effect as though set forth in limo verba herein, and that it will be unsafe for the plaintiff to proceed to the trial of this action without a disclosure on the part of the defendant Irwin E. Wallerstein of the relation which did exist between the said defendants at the time hereinbefore stated and also as to what took place in the matter of the employment of this defendant^[1] and the interests of the defendants therein and in the subject-matter thereof.”

Neile F. Towner, for the appellant.

Thomas Hun, for the respondent.

Before a party can be permitted to examine his adversary before trial he must present an affidavit setting forth, among other things : “ That the testimony of such person is material and necessary for the party making such application.” (Code Civ. Proc. § 872.) This provision of the Code is supplemented by rule 82 of the General Rules of Practice, which requires that the affidavit shall specify the facts and circumstances which show that the examination of the person is material and necessary. It is clear that the affidavit upon which the order for examination in this case was made does not comply with these requirements. Ho fact or circumstance to show that the deposition of the defendant is material and necessary is specified. On the contrary, it is quite apparent that the testimony sought to be elicited would be neither material nor necessary to establish the cause of action alleged in the complaint.

Many of the technical rules which formerly restricted the right of a party to examine his adversary before trial have been relaxed, but the fundamental rule that the testimony sought must be essen

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tial to the moving parties’ case has not been abrogated. (Oakes v. Star Co., 119 App. Div. 358 ; Caldwell v. Glazier, 128 id. 315.)

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion to vacate the order for examination granted, with ten dollars costs.

All concurred.

Order reversed, with ten dollars costs and disbursements, and motion to vacate order for examination granted, with ten dollars costs.