Spero v. West Side Bank — 10 N.Y.S. 897

Majority

p. 897

Spero v. West Side Bank.

(Supreme Court, General Term, First Department.

June 6, 1890.)

Headnote

Discovert—Examination of Party before Trial.

Plaintiff’s motion to vacate an order for his examination before trial is properlj denied where it appears from the affidavit that it is defendant’s intention to use Eiaintiff’s testimony on the trial, and that the knowledge of the facts established y the evidence are peculiarly possessed by plaintiff, and cannot be obtained bj defendant in any other way.

Appeal from special term, New York county.

Action by David Spero against the West Side Bank. Plaintiff appeals from an order denying his motion to vacate order for his examination before trial. For report on former appeal, see 7 if. Y. Supp. 546.

Argued before Van Brunt, P. J., and Brady and Daniels, JJ.

W, F. Severance, for appellant. Gibson Putzel, for respondent.

Although the affidavit upon which the order for the examination of the plaintiff was granted does not contain in as direct terms as might be advisable all the allegations required in most of the cases to sustain an order for the examination, sufficient appears to show that it is the intention of the defendant to use the evidence of the plaintiff upon the trial, and that the knowledge of the facts established by the evidence of the plaintiff is peculiarly possessed by the plaintiff, and the defendant cannot obtain them in any other way. The order should be affirmed, with costs to abide the event.