First National Bank of Jersey City v. Lindenmeyer

Majority

p. 447

First Nat. Bank of Jersey City v. Lindenmeyer.

(Supreme Court, General Term, First Department.

January 24, 1890.)

Headnote

Practice in Civil Cases—Examination of Party before Trial.

Where the affidavit, on which is granted an order to examine defendant before trial, contains no facts showing that the examination is necessary, or that there is any doubt that plaintiff will be able to procure the attendance of defendant at the trial, and where the affidavit shows that the object of the motion is to obtain in advance the grounds of defense, the order will be vacated.

Appeal from special term, New York county.

Action by the First National Bank of Jersey City against John Lindenmeyer and others, in which an order for the examination of defendant was granted. From an order denying a motion to vacate that order defendant appeals.

Argued before Van Brunt, P. J., and Brady and Daniels, JJ.

Lucien Birdseye, for appellant. Hamilton Wallis, for respondent.

It seems to be apparent, upon an éxamination of the affidavit upon which the order for examination was granted in the case at bar, that the object was to obtain in advance of the trial a statement by the defendantsought to be examined of the grounds of his defense, so that the plaintiff may be the better prepared to meet the same upon the trial. This, in one part of the affidavit, is the avowed object; as it is stated that one of the objects of the examination ig to ascertain the claims of the defendant in respect to the payment of the special capital. Furthermore, no facts are stated showing that this examination is necessary to the plaintiff. An attempt is made to do so upon the allegation of the absence of entries in the books of the defendant firm, but there is no statement that the facts are not within the knowledge of the plaintiff's officers, nor that they have not at their disposal the means of proving all that they seek to extract from the plaintiff. Neither is it shown that there is any doubt about their being able to procure the attendance of the defendant sought to be examined at the trial. These applications are addressed to the sound discretion of the court, and should only be granted where it appears that they are sought for a legitimate purpose, and not merely upon a hope of discovering something of benefit to the party applying. The order appealed from should be reversed, with $10 costs and disbursements, and the order for examination vacated. All concur.