Weston v. Reich — 15 N.Y. St. Rep. 823

Majority

p. 823

Abijah Weston et al., Resp’ts, v. Elizabeth Reich et al., App’lts.

(Supreme Court, General Term, Second Department,

Filed May 14, 1888.)

Headnote

^Examination before trial—When order for examination will be granted.

An order for the examination of a par'y before trial will not be granted merely to aid the moving party in preparing for trial, the intention of the law is to permit such deposition to be taken only where the testimony of the deponent is material and necessary for the use of the moving party on the trial.

Appeal from an order made at a special term in Kings county, denying a motion to vacate an order for the examination of a defendant before trial.

Abram KUng, for app’lts; F. P. Bellamy, for resp’ts.

—This is an appeal from an order denying a motion to vacate an order for the examination of the defendant before trial.

The action is for the foreclosure of a mechanic’s lien for building material. The answer of the defendant Lorenz Eeich, whom the plaintiffs desire to examine admits the delivery of the lumber substantially in accordance with the allegation of the plaintiffs complaint, and in the affidavit presented for the procurement of the order, the attorney says the testimony of the defendant is necessary and material for the plaintiff in the prosecution of this action, and the reason why it is material is that the various allegations and defenses contained in said defendant’s answer are inconsistent That it is impossible to determine what part of

p. 824

the material alleged in plaintiffs’ complaint and bill of particulars the said defendant admits to have received or whether he admits he has received any or not. That it is impossible for plaintiffs to know of what items of material they will have to prove the sale and delivery and what witnesses will be necessary for them to produce upon the trial of this action to prove such sale and delivery. Further down in the affidavit he says the plaintiffs cannot prepare or safely proceed to the trial of this action until such examination has been made.

There is nothing to show any peculiar knowledge in the possession of the defendant, and from the nature of the case and the transactions involved, it is entirely plain that the plaintiffs have full knowledge of all the facts.

They know the material sold to the defendant, and all the details are peculiarly within their knowledge.

The object of the plaintiffs, as disclosed by the affidavit, is to procure the testimony of the defendant to enable them to prepare for the trial of the action, and although some judges have granted this order with more freedom than others, yet they have never been granted for such a purpose alone.

Some necessity for the procurement of the depositions of the party should be shown to exist, and the plain spirit and intention of the Code is to permit the deposition to be taken only where the testimony is material and necessary for the party for use on the trial of the action.

This department is fully committed to these views by many decisions, and it is believed they are supported by the adjudicated cases all over the state.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion to vacate the order should be granted, with ten dollars costs.

Barnard, P. J., concurs; Pratt, J., not sitting.