Majority
p. 210Isabella Horton, Resp’t, v. William Barnes et al, App’lts. (Supreme Court, General Term, Second Department, Filed July 28, 1893.)
Headnote
Depositions—Examination of party before triar—Affidavit.Where the application for an examination of the defendant before trial was made on the pleadings as well as the affidavit of plaintiffs attorney, and all the statements alleged in the affidavit on information and belief are contained in the complaint, the papers are sufficient to sustain the order.
Appeal from order denying defendants’ motion to set aside an order for the examination of the defendant Wainwright before trial. '
Raphael J. Moses, Jr., for app’lts; Roswell H. Carpenter, for resp’t.
This is an appeal from an order made at special term denying defendant’s motion to set aside an order for the examination of the defendant Wainwright before trial.
The motion was made on certain grounds particularly specified in defendants’ notice of motion. It is unnecessary to refer to but two of them, the third, that “ the sources of the affiant’s information are not disclosedand the fourth, that “ the allegations as to plaintiff’s intentions and allegations are not corroborated by the plaintiff.” The answer to both of these grounds is that the order for defendant’s
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examination is based on the pleadings as well as the affidavit of plaintiff’s attorney. Every allegation in the affidavit that is alleged on information and belief is contained in the complaint. In our opinion the papers on which the order was granted were sufficient, and the motion to set aside the order was properly denied. The order appealed from should be affirmed, with costs.
Barnard, P. J., and Dtkman, J., concur.