Blennerhasset v. Stephens — 12 N.Y.S. 602

Majority

p. 602

Blennerhasset v. Stephens.

(Supreme Court, General Term, First Department.

December 31,1890.)

Headnote

Discovery—Examination of Party before Trial.

A party asking an examination of his adversary before trial must show special circumstances making it important to take the testimony of such adversary before, instead of at, the trial.

Appeal from special term, New York county.

Argued before Van Brunt, P. J., and Barrett and Bartlett, JJ.

Edgar J. Nathan, for appellant. Gibson & Davis, for respondent.

We think this case comes within the rule laid d*own in Williams v. Folsom, that the party seeking the examination must show special circumstances making it important to take the testimony of his adversary before the trial instead of at the trial. 5 N. Y. Supp. 211 . The plaintiff has failed to comply with this requirement. Furthermore, it is apparent from the papers that the plaintiff’s husband, who makes an affidavit in her behalf, is informed as to the matters concerning which she desires to examine the defendant, except such as the defendant would be obliged to disclose if an accounting were decreed, and as to- these an examination before trial cannot be necessary. We are satisfied that no examination' at this time is needed to enable the plaintiff to enforce such rights as she may have against

p. 603

the defendant. The order appealed from is reversed, and the motion to vacate the order for the defendant’s examination before trial is granted, with $10 costs and the disbursements of appeal.