Bloom v. Patten — 10 N.Y.S. 228

Majority

p. 228

Bloom v. Patten et al.

(Superior Court of New York City, General Term.

June 27, 1890.)

Headnote

Discovery—Examination or Party before Trial.

An order for the examination of defendants before trial, asked for on the ground that such examination is necessary to enable plaintiff to amend his complaint, will be reversed where the affidavits on both sides show that plaintiff has sufficient. knowledge of the facts constituting his alleged cause of action, and seeks information concerning an anticipated defense, and to ascertain whether the cause of action cannot be extended to other parties.

Appeal from special term.

Action by Jacob B. Bloom against Francis Jarvis Patten and others. Defendants appeal from an order requiring their examination before trial.

Argued before Freedman and Truax, JJ.

Semple & Cahill, for appellants. Jacob E. Bloom, pro se.

The papers on which the defendants were ordered to appear and submit to an examination before trial, and to make a discovery of their books and papers, claimed that such examination and discovery were necessary to enable the plaintiff to amend his complaint. The test, therefore, is whether a necessity was shown for the purpose stated. The proof fails to show suvh a necessity. From all that appears by the affidavits on both sides, it is evident that the plaintiff has sufficient knowledge of the facts constituting his alleged cause of action, and that his object is to obtain information concerning an anticipated defense, and to find out whether the cause of action cannot be extended to other parties. The order should be reversed, with $10 costs and disbursements.