In re White — 44 A.D. 119

Majority

p. 119

In the Matter of the Application of Andrew W. White, for the Taking of the Deposition of Joel S. De Selding, Pursuant to the Provisions of Sections 870, 871, 872 and 873 of the Code of Civil Procedure. Joel S. De Selding and Hamilton H. Salmon, Appellants; Andrew W. White, Respondent.

Headnote

Application to perpetuate testimony — not granted to determine •whether a cause of action exists—the defendant must he named.

An application to examine a witness before the commencement of a contemplated action against a third person will not be granted to enable the applicant to ^determine whether he has a cause of action against such person.

In the affidavit used upon such an application, the proposed defendant'must always be definitely and not tentatively named, and it must be made to appear that the applicant has a cause of action against him.

Appeal by Joel S. De Selding, the proposed witness, and Hamilton H. Salmon, the proposed defendant, from an older of the Supreme Court, made at the Hew York Special Term and entered in the office of the clérk of the county of Hew York on the 25th day of May, 1899, denying their motion to vacate an order for the examination of Joel S. De Selding as a witness prior to the commencement of an action against Hamilton H. Salmon.

Edward W. S. Johnston, for the appellant.

Franklin Pierce, for the respondent.

The applicant asserts that his object here is to perpetuate De Selding’s testimony and to use it upon the trial of a contemplated action against Salmon. In this view he fails to state any circum

p. 120

stances which render it necessary for his protection that the witness’ testimony should be perpetuated.. This he was required to do by subdivision 6 of section 8.72 of the Code of Civil Procedure. He states certain facts which show that it is very- important he should know what this witness' will testify to, and that he cannot with safety bring an action against Salmon until he is thus advised. These, however, are not circumstances which relate to the necessity of perpetuating the witness’ testimony, and, as no such circumstances are disclosed,-the order for the examination was unauthorized.

It.is apparent, however, that the real object of the applicant is not what he thus avows. In fact, his counsel deposes that the witness’ testimony is necessary “ for the plaintiff in determining whom he shall make party' defendant in this (contemplated) action.” And again : “ That a summons cannot be drafted herein, nor a complaint, without finding out who was in possession of said premises (the premises in front of which the applicant was injured), at the time of. -the alleged injury.” The real object of the applicant, therefore, is to ascertain whether he has a cause of action against Salmon. The order should consequently have been Vacated : First, because the applicant’s purpose is not, as it was in Merchants' National Bank v. Sheehan ( 101 N. Y. 176 ), to examine a person against whom an action is about to be brought, but to examine a witness to ascertain whether he has a cause of action against a particular person, and, if he finds he has, to frame his complaint advisedly against such person. That, as we held in Matter of Anthony ( 42 App. Div. 66 ), is not authorized by sections 871 to 876 of the Code of Civil Procedure. Second) because, as was said in the case last-cited, “the proposed defendant must be. definitely, and not tentatively, -named in the affidavit (Code Civ. Proc. § 872); and that it must also be made to appear that the applicant has a- cause of action against such specific person.”

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

Van Brunt, P. J., Rumsey, Ingraham and McLaughlin, JJ., concurred.

' Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.

Cases cited

Merchants' National Bank v. Sheehan 101 N. Y. 176 N.Y. 1886-01-19 p. 120