Simmons v. Hazard — 33 N.Y. St. Rep. 838

Majority

p. 838

Charles R. Simmons, Resp’t, v. Edward C. Hazard et al., App’lts.

(Supreme Court, General Term, First Department,

Filed October 24, 1890.)

Headnote

Depositions—Affidavit for should be made by party.

Affidavits for the examination of a party before trial should he made by the party in whose behalf the motion therefor is made, he or she being the only one who can asseverate as to his or her own knowledge or information.

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

G. G. Leeds, for app’lts; Morse & Haynes, for resp’t.

The order for the. examination of the defendants, Hazard and Osborn, should have been vacated, if for no other reason, because the affidavit upon which it was granted was verified by the attorney for the plaintiff without any sufficient reason being given therefor. The reasons given for the verification by the attorney are stated to be those stated in the verification of the complaint, and we find nothing stated in the verification of the complaint as to -the affidavit. If the attorney intended to state as a reason the one because of which he states that the complaint was verified by him, it was entirely insufficient.

These affidavits should be made by the party, he or she being the only one who can asseverate as to his or her own knowledge or information, material allegations.

There is nothing in the affidavit under consideration to show that the attorney had any peculiar knowledge as to any of the facts necessary to be established; and as to those as to which he swears he has no knowledge, it may well be that the plaintiff was fully informed.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the order for examination vacated, with leave to the plaintiff upon payment of these costs mid ten dollars costs of the motion below to apply upon additional papers for a new order.

Daniels and Brady, JJ., concur.