Majority
p. 369Chaskel v. Metropolitan El. Ry. Co. et al. (Supreme Court, General Term, First Department. July 9, 1889.) Argued before Van Brunt, P. J., and Brady and Barrett, JJ.
Headnote
1. Practice in Civil Cases—Examination oe Party before Trial.To secure the examination of an adverse party before trial, it must be made to appear that it is important to have his examination before trial, orthat there is reason to apprehend that it cannot be had at the trial. Where neither of these allegations appears in the affidavit on which the order of examination is based, the order should be vacated.
3. Same—Character of Testimony.
Where an order for the examination of the adverse party before trial has been made, and it thereafter appears, before the examination, that the testimony sought is of a secondary character, and that it may be obtained from primary sources without the examination, the order should be vacated.
Appeal from special term, Yew York county.
An action in tort by James Chaskel against the Metropolitan Elevated Railway Company, Manhattan Railway Company, Cyrus Field, et al. After issue was joined plaintiff procured an order for the examination before trial of the defendant Field. This order defendants moved to vacate for the insufficiency of the affidavit on which it was based and the incompetency of the testimony sought thereby. The motion to vacate being allowed, plaintiff appeals.
Lewis Dansers, for appellant. Davies & Rapallo, for respondents.
The order appealed from is clearly right, under the rules laid down governing the examination of parties before trial contained in the case of Jenkins v. Putnam, 106 N. Y. 272 , 12 N. E. Rep. 613 . In that case it is distinctly held that certain facts must be made to appear to the judge before such an examination should be allowed, among which is the fact that the plaintiff has reason to apprehend that he cannot have the examination of
p. 370
the party at the trial, or that it is important for him to have the testimony of the party to be examined before trial, neither of which allegations appear in the affidavit upon which the application in this case was founded. There seems to be no reason whatever, why the examination should be allowed. It appears from the plaintiff’s brief that the claim is that a director of a corporation is primarily, liable for the acts working a tort by the corporation, and, if lie is correct in that respect, then he needs no examination of any of the defendants in that regard, showing their assent to the acts done by the corporation. As to the claim of proving whether the defendant Field was a director or not, the primary source for the proving of such facts is the minutes of the corporation; and, until it appears that there are no minutes, the parties should be relegated to that source of information, rather than harassing a defendant unnecessarily by an order for his examination. . The order should be affirmed, with $10 costs and disbursements. All concur.
Cases cited
- Jenkins v. Putnam 106 N. Y. 272 p. 369