Lane v. Holden — 108 N.Y.S. 1138

Majority

p. 1138

LANE, Respondent, v. HOLDEN et al. Appellants.

(Supreme Court, Appellate Division, Fourth Department.

January 8, 1908.)

Headnote

Action by Charles M. Lane against Hendrick S. Holden and others.

Order reversed, with $10 costs and disbursements, and motion granted,with $10 costs. Held, that the moving papers did not show that the examination was necessary to frame the complaint, or that the testimony of the persons to be examined was material and necessary in the prosecution of the action, issue not having been joined; also on the ground that the affidavit on which the order of examination was granted was defective and insufficient, in that it failed to state whether or not the defendants Satterlee and Busch had appeared in the action, and, if they or either of them had appeared therein, the name and residence or- office address of the attorney by whom they or either of them had appeared.

ROBSON, J., concurs on ground last stated. SPRING, J., dissents, and votes for affirmance.