Majority
p. 364Bertha Koehler, Executrix, Resp’t, v. Samuel D. Sewards, App’lt. (Supreme Court, General Term, First Department, Filed January 24, 1890.)
Headnote
Examination before trial—Affidavit for.An order for the examination of a defendant before trial to obtain facts to insert in the complaint will not be granted upon an affidavit made by plaintiff’s attorney upon information and belief alone, especially where it appears that plaintiff has, in another action, admitted knowledge of the facts sought to he obtained.
Appeal from an order denying a motion to vacate an order requiring the defendant to appear and be examined before trial.
Emanuel I. Myers, for resp’t; Wales F. Severance, for app’lt.
The object for which the examination of the defendant has been directed to be taken is to obtain facts to insert in the. complaint to present a cause of action. The claim is made that on loans of money made at different times by the defendant to the testator usurious rates of interest were exacted and paid. And it is proposed to examine the defendant to obtain an account of such loans, and the interest reserved and received. But a fundamental difficulty appears in the way of sustaining the order. And that is that the affidavit has been made by the attorney, and its
p. 365
important statements rest upon information and belief alone-Such an affidavit has been so often held to be insufficient for an order of this nature as almost to render it needless to cite authorities to sustain the position. It was distinctly so held in Barnard v. Kobbe, 54 N. Y., 516 , 520-521, and in Steuben County Bank v. Alberger, 78 id., 252. Beyond that, the answer of the plaintiff herself in the suit of Wortmann against herself indicates the fact to be that she is possessed of ample information concerning the loans so as to be able to frame her complaint without the examination of the defendant. •
The order should be reversed, with ten dollars costs and also the disbursements.
Yan Brunt, P. J., and Brady, J., concur.