Pergoli v. Lyman — 92 N.Y.S. 788

Majority

p. 788

PERGOLI v. LYMAN.

(Supreme Court, Appellate Term.

March 21, 1905.)

Headnote

1. - Depositions—Obdeb fob Examination—Failure to Give Notice.

An order appointing a referee to take the deposition of a witness should be vacated where no notice of the application therefor was given to the adverse party’s attorney.

[Ed. Note.—For cases in point, see vol. 16, Cent. Dig. Depositions, § 45.]

2. Same—Sufficiency of Affidavit.

An affidavit for an order for the examination of a witness is insufficient where it fails to state any facts, but merely the attorney’s conclusions, as to the necessity of the examination.

[Ed. Note.—For cases in point, see vol. 16, Cent. Dig. Depositions, § 50.]

p. 789

Appeal from City Court of New York, Special Term.

Action by Eduardo Pergoli against John Grant Lyman. From an order denying a motion to vacate an order for his examination, Dan Magrino, a witness, appeals. Reversed.

Argued before SCOTT, O’GORMAN, and BLANCHARD, JJ.

Sheridan S. Norton, for appellant.

Morris J. Hirsch, for respondent.

The order appointing a referee to take the deposition of the appellant should have been vacated, if for no other reason because notice of the application therefor was not given to the plaintiff’s attorney. Furthermore, the affidavit upon which the order was granted was insufficient, in that it failed to state any facts upon which the court could find that the examination was necessary. It contains merely the attorney’s conclusions.

Order reversed, with $10 costs and disbursements. All concur.