Majority
p. 845David Spero, App’lt, v. The West Side Bank, Resp’t. (Supreme Court, General Term, First Department Filed June 6, 1890.)
Headnote
Examination before trial — Affidavit.An examination of the plaintiff before trial may properly be granted, although the affidavit does not state all the necessary allegations in as
p. 846
direct terms as might he advisable, where sufficient appears to show that the knowledge of the facts to he established is peculiarly possessed by the plaintiff and the defendant cannot obtain them in any other way.
Appeal from order denying motion to vacate order for examination of plaintiff before trial.
W. F. Severance, for app’lt; Gibson Putzel, for app’lt.
Although the affidavit upon which the order for the examination of the plaintiff was granted does not contain in as direct terms as might be advisable all the allegations required in most of the cases to sustain an order for the examination, sufficient appears to show that it is the intention of the defendant to use the evidence of the plaintiff upon the trial, and that the knowledge of the facts established by the evidence of the plaintiff is peculiarly possessed by the plaintiff and the defendant cannot obtain them in any other way.
The order should be affirmed, with costs to abide the event.
Van Brunt, P. J., Brady and Daniels,' JJ., concur.