Hyperlawhypertext legal database In re Van Nostrand 29 N.Y.S. 112

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In re Van Nostrand

29 N.Y.S. 112 Court N.Y. Gen. Term Decision date 1894-05-18 English

Delivered by PARKER, J.

Contents

Majority

p. 112
(78 Hun, 351.)
In re VAN NOSTRAND.
(Supreme Court, General Term, First Department.
May 18, 1894.)

Headnote

Discovery—Examination, of Party before Trial.
An affidavit for the examination of a party before trial, to enable affiant to prepare his complaint, is fatally defective, where it contains allegations on information and belief, but does not recite the facts on which such information and belief are based.
Appeal from special term, New York county.
Application for the examination of Charles B. Van Nostrand, to enable affiant to prepare his complaint in an action to be brought by him. From an order denying a motion to vacate an order for the examination, said Van Nostrand appeals.
Reversed.
Argued before VAN BRUNT, P. J., and FOLLETT and PARKER, JJ.
p. 113
Treadwell Cleveland, for appellant.
William Mitchell, for respondent.

The affidavit upon which the order is based, authorizing the examination of Van Nostrand for the alleged purpose of enabling the affiant to prepare his complaint in an action to be brought by him, is fatally defective, in that it fails to support the allegations made upon information and belief by the affidavit ■of deponent’s informant, or by assigning a reason for not producing such affidavit, and presenting, instead, the statements made by him to the affiant. From the affidavit it appears that the information which persuaded the affiant to make it was obtained from •one MacDonald, and an alleged copy of an agreement. The so-called “agreement” does not justify the belief expressed, and the remaining source of information is therefore MacDonald’s statement to him. But he has failed to furnish to the court any part •of the conversation with MacDonald. Whether MacDonald said anything to justify the impression made upon the affiant’s mind, the court cannot know; and the authority to inquire into the private affairs of an alleged interested party to an action will not be granted by it until it has such knowledge of the facts as persuades it that the examination is desired solely for the purposes authorized by the Code. The order should be reversed, with $10 ■costs and printing disbursements, ■ and motion granted, with $10 ■costs. All concur.