Majority
p. 511Simmons v. Hazard et al. (Supreme Court, General Term, First Department. October 24, 1890.) Argued before Van Brunt, P. J., and Brady and Daniels, JJ.
Headnote
-Examination of Party before Trial.An affidavit to obtain an examination of defendants before trial was made by plaintiff’s attorney, but did not show that he had any peculiar knowledge of the facts, and no reason was given for his making the affidavit instead of plaintiff, except by referring to the verification of the complaint by him," the reason given for which was plaintiff’s absence from the county. Held, that an order for examination made thereon should be vacated, as only the party can verify the material allegations as to his own knowledge and intention.
Appeal from special term, Hew York county.
Action, by Celia R. Simmons against Edward C. Hazard and others. Plain"tiff obtained an order for the examination before trial of defendants Edward •C. Hazard and Lewis A. Osborn. Erom an order denying a motion to vacate "the order for their examination, said defendants.appeal.
Leeds & Morse, (Henry Bacon, of counsel,) for appellants. Morse & Haynes, for respondent.
The order for the examination of the defendants Hazard and Osborn should have been vacated, if for no other reason, because the ■affidavit upon which it was granted was verified by the attorney for the plaintiff without any sufficient reason being given therefor.- The reasons given for the verification by the attorney are stated to be those stated in the verification of the complaint, and we find nothing stated in the verification of the ■complaint as to the affidavit. If the attorney intended to state, as a reason, rthe one because of which he states that the complaint was verified by him, it
p. 512
was entirely insufficient. These affidavits should be made by the party, he or she being the only one who can asseverate -as to his or her own knowledge or intention, material allegations. There is nothing in the affidavit under consideration to show that the attorney had any peculiar knowledge as to any of the facts necessary to be established; and, as to those as to which he swears he has no knowledge, it may well be that the plaintiff was fully informed. The order appealed from should be reversed, with $10 costs and disbursements, and the order for examination vacated, with leave to the plaintiff upon payment of these costs, and $10 costs of the motion below, to apply Upon additional papers for a new order. All concur.