Cahill v. Kurscheedt — 61 N.Y.S. 1100

Majority

p. 1100

CAHILL v. KURSCHEEDT.

(City Court of New York, General Term.

January 3, 1900.)

Headnote

Examination op Party before Trial.

Code Civ. Proc. §§ 870, 872, 873, providing for the examination before trial of a party whose testimony is material and necessary to the party applying for such examination, were intended to have a defendant testify in a plaintiff’s behalf before trial, where the information sought is wholly and solely known to the former.

Appeal from special term.

Action by Santiago P. Cahill against Frederick A. Kurscheedt. From an order vacating an order for defendant’s examination before trial, plaintiff appeals. Reversed.

Argued before FITZSIMONS, C. J., and O’DWYER, J.

John Delahanty, for appellant.

Blumenstiel & Hirsch, for respondent.

We think that the affidavit upon which the order

for defendant’s examination before trial was granted was sufficient. The order for his examination should stand, and the order appealed from, which vacated it, should be reversed. The testimony desired by plaintiff is solely within the defendant’s personal knowledge, and is necessary for plaintiff to have upon the trial, to maintain this action. It seems to us that sections 870, 872, and 873 of the Code were enacted especially to have a defendant to testify in a plaintiff’s behalf before trial, where the information sought for is wholly and solely only known to him. The plaintiff should be allowed to examine such adverse and unfavorable witness before trial, just as he would usually examine a favorable witness out of court, so that upon the trial he may know just what testimony to expect from such witness. In our judgment, it is only just and equitable to allow the examination of defendant in this instance.

Order appealed from reversed, and order for examination of defendant affirmed, with costs.