Blennerhasset v. Stephens — 36 N.Y. St. Rep. 195

Majority

p. 195

Isabel C. Blennerhasset, Resp’t, v. William A. Stephens, App’lt.

(Supreme Court, General Term, First Department,

Filed, December 31, 1890.)

Headnote

.Depositions—Examination before trial.

A party who applies for the examination of his adversary before trial must show special circumstances making it important to take such testimony before instead of at the trial.

Appeal from order denying motion of defendant to vacate an ■order for his examination before trial.

Edgar J. Nathan, for app’lt; Gibson & Davis, for resp’t

We think this ease comes within the rule laid -down in Williams v. Folsom, that the party seeking the examination must show special circumstances making it important to take the testimony of his adversary before the trial instead of at the trial. 52 Hun, 68 ; 22 N. Y. State Rep., 507. The plaintiff has failed to comply with this requirement. Furthermore, it is apparent from the papers that the plaintiff’s husband, who makes an affidavit in her behalf, is informed as to the matters concerning which she desires to examine the defendant, except such as the defendant would be obliged to disclose if an accounting were decreed, and as to these an examination before trial cannot be necessary. We are satisfied that no examination at this time is needed to ■enable the plaintiff to enforce such rights as she may have against the defendant. The order appealed from is reversed and the motion to vacate the order for the defendant’s examination before trial is granted, with ten dollars costs and the disbursements of .appeal.

Tan Brunt, P. J., Barrett and Bartlett, JJ., concur.