Carr v. Risher — 11 N.Y. St. Rep. 889

Majority

p. 889

JOHN F. CARR, App’lt, v. JOHN C. RISHER, Resp’t.

Headnote

Examination before trial—When allowed.

Appeal from an order for examination of plaintiff.

E. P. Wheeler, for app’lt; J. H. V. Arnold, for resp’t.

—The claim in this action being stale, having arisen more than twenty years prior to the commencement of the action, and all the parties being dead from whom the defendant might procure the necessary information to enable him to prepare for trial, it is proper that he should be allowed to examine the plaintiff upon the subject of the manner in which he became the owner of the bonds which formed the foundation of the cause of action mentioned in the complaint and of the bonajides of such ownership

Such an examination would not be, in view of the peculiar circumstances of the case, a finishing examination, but would only furnish the defendant with information of facts which it would be impossible for him to establish in any other way.

To this extent the defendant should have been allowed to examine the plaintiff as a witness before trial.

The order must therefore be reversed with ten dollars costs and disbursements, and an order entered allowing such examination.