Grout v. Strong — 20 N.Y.S. 881

Majority

p. 881

Grout v. Strong.

(City Court of New York, General Term.

November 25, 1892.)

Headnote

Examination of Party before Trial.

Under Code Civil Proc. §§ 870, 872, 873, providing for a general examination of the adverse party as a witness, plaintiff will be permitted to examine defendant before trial, on his showing that the testimony desired is solely within defendant’s control and knowledge, and is necessary to enable plaintiff to maintain the action.

Appeal from special term.

Action by Ralph W. Grout against Henry H. Strong. The defendant moved to vacate an order for defendant’s examination before trial, and the motion was denied, from which ruling defendant appeals. Affirmed.

Argued before Ehrlich, C. J., and Newburger and Fitzsimons, JJ.

Jerome & Nason, for appellant. Thomas F. Byrne, for respondent.

This is an appeal from an order denying a motion to vacate an order for defendant’s examination before trial. It appears from the affidavit upon which said order (for defendant’s examination) was granted that the testimony desired is solely within the defendant’s control and knowledge, and that the same is necessary to enable the plaintiff to maintain this action upon the trial. Justice Danforth, in Herbage v. City of Utica, 109 N. Y. 82 , 16 N. E. Rep. 62 , says “that a party litigant may, in the discretion of the judge to whom application under sections 870, 872, 873 of the Code, have a general examination of his adversary as a witness in the cause, as well before as at the trial.” A careful examination of the appeal book convinces us that the order appealed from was properly granted, and must therefore be affirmed, with costs. All concur.