Woodhull v. Washburn — 40 N.Y. St. Rep. 918

Majority

p. 918

William A. Woodhull, Rec’r, Resp’t, v. Ansel L. Washburn, App’lt.

(Supreme Court, General Term, First Department,

Filed October 16,1891.)

Headnote

Depositions—Examination before trial—Affidavit.

An affidavit to procure an order for the examination of a defendant before trial must state facts from which the court can judge that such, examination is necessary; that defendant’s examination cannot as well be taken on the trial; that plaintiff has no knowledge of the facts in relation to which the examination is to be had, and that it will be used on the trial.

Appeal from order denying defendant’s motion to vacate order, for his examination before trial.

W. B. Ellison, for app’lt; L. J. Morrison, for resp’t.

Under the principles laid down in Jenkins v. Putnam, 106 M. Y., 272; 8 N. Y. State Rep., 710; the motion to vacate the order for the examination of the defendant should have been granted.

Although there is an allegation that it is necessary to examine the defendant before trial, no fact are shown from which the court can judge that such allegation has any foundation. Meither is it shown that the defendant’s testimony cannot be taken upon the trial as well as before the trial. The papers further do not show any intention to use the evidence which might be taken upon defendant’s examination at the trial; nor does it appear that the plaintiff has no knowledge of the facts in relation to" which he desires to examine the defendant. The affidavit is made by the attorney, who is not presumed to have any knowledge of the information possessed by the plaintiff. The papers upon which the order was granted seem to have been fatally defective, and the motion to vacate should have been granted. What rights the receiver might have if lie had proceeded under the Revised Statutes it is not necessary here to discuss.

p. 919

The order should be reversed, with ten dollars costs of appeal and disbursements, and the motion granted, with leave to renew upon additional papers on payment of the costs on appeal

Daniels, J., concurs._