First National Bank v. Lindenmeyer — 29 N.Y. St. Rep. 300

Majority

p. 300

The First National Bank of Jersey City, Resp’t, v. John Lindenmeyer, Impl’d, App’lts.

(Supreme Court, General Term, First Department,

Filed January 24, 1890.)

Headnote

Examination before trial—Affidavit.

Where the affidavit for an order for examination of a defendant before trial contains no facts showing that the facts are not within plaintiffs knowledge, or that there is any doubt that defendant’s attendance at the trial can be procured, and it appears therefrom that the object is to ascertain the grounds of the defense in advance, an order granted thereon will be vacated.

Appeal'from order denying motion to vacate order for examination of the defendant

Luden Birdseye, for app’lts; Hamilton Wallis, for resp’t

It seems to be apparent, upon an examination 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 defendant sought 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 is 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 ten dollars costs and disbursements, and the order for examination vacated.

Brady and Daniels, JJ., concur.