Williams v. Foster — 22 N.Y. St. Rep. 507

Majority

p. 507

Louisa Williams et al., Resp’ts, v. Samuel D. Foster, App’lt.

(Supreme Court, General Term, First Department,

Filed March 29, 1889.)

Headnote

¡EXAMINATION BEFORE TRIAL—WHAT MUST BE SHOWN TO ENTITLE PARTY TO ORDER.

A party making application for the examination of his adversary before trial, should show by the papers upon which the order is founded that there is some good reason for directing the examination to be had before rather than at the trial.

Appeal from order denying motion to vacate order for examination of defendants before trial.

E. C. Perkins, for app’lt; Paul D. Cravath, for resp’ts.

—It is apparent from the brief of the respondents in this case that the ground upon which the ■order is sought to be upheld is that there is no need for a party making an application for the examination of his adversary before trial to show any special circumstance making it important to take the testimony of such adversary before trial instead of at the trial.

We think this is an entirely erroneous view to take of the decisions made upon this point. It is true that the language of the Code may be claimed to be mandatory, but it has been repeatedly held that taking the whole of the provisions of the Code, it is apparent that it was not intended to deprive the judge of all discretion, but that it should be made to appear by the papers upon which the order is founded that there is some good reason for directing the examination to be had before the trial rather than at the trial. In the case .at bar no such reason appears. It is true that it is said that in view of the fact that the defendants are unfriendly to the interest of the plaintiff, the plaintiff cannot safely go "to trial without first having caused the defendants to be examined. But this allegation is not founded upon any fact, but is simply the conclusion of the affiant. There is nothing to show that the defendants are any more hostile to the interest of the plaintiff than the defendant in any other case against whom a claim is attempted to be enforced by suit. This statement therefore affords no reason.

In regard to the' other statements contained in the affidavit there is no allegation that the facts are not perfectly known to the plaintiff, nor that they could not have their examination of the defendants at the trial under these circumstances. It is apparent upon the face of the application that the desire of the plaintiffs is to anticipate if possible the defense, and not to obtain the testimony of the defendants for the purposes of use upon the trial.

In fact they nowhere state that they intend to use the testimony upon the trial.

In the case of Jenkins v. Putnam ( 106 N. Y., 272 ; 8 N. Y.

p. 508

State Rep., 710) it is distinctly held by the couru of appeals, that where this deficiency of allegation exists, the court is justified in setting aside the order for the examination.

We think, therefore, that the application in no way complies with the rules laid down controlling the granting of orders of this description, and that no case has been made out to justify the court in awarding to the plaintiffs this right before the time which they are at liberty to exercise without the permission of the court at the trial.

The order should be reversed, with teii dollars costs and. disbursements.

Brady and Daniels, JJ., concur.