Pots v. Herman — 57 N.Y. St. Rep. 78

Majority

p. 78

Theodore Pots, Resp’t, v. Jacob Herman, App’lt.

(New York Common Pleas, General Term,

Filed February 5, 1894.)

Headnote

1. Appeal—Discretion.

An exercise of discretion by the city court is not the subject of review by this court.

2. Same.

An order for the examination of a party before trial granted by the city court upon prima facie proof of the requisite facts, is not reviewable by this court.

3. Same.

Such order granted without any proof of the requisite facts, involves no exercise of discretion, but is absolute legal error, and so is within the appellate jurisdiction of this court.

4. Depositions—Examination of party before trial.

To authorize an order for the examination of the defendant to enable the plaintiff to frame his complaint, it must appear that the information sought is material and necessary for the purpose; that the plaintiff has not the information, and that he cannot obtain it except by examination of the defendant.

Appeal from order of the general term of the city court, affirming order denying motion to vacate order for examination of defendant to enable plaintiff to prepare his complaint.

Sam'l G. Adams and Nathan Lewis, for app’lt; A. H. BerricJc, for resp’t.

The respondent objects, in limine, that the order is not the subject of review by this court.

We have no jurisdiction to entertain an appeal from an order which the city court has granted in the exercise of its discretion. Keller v. Feldmann, 49 St. Rep., 718 . An order for the examination of a party before trial, if the requisite facts be presented, is discretionary; and so, is not open to revision by us on appeal from the city court. Robinson v. Cornish, 36 St. Rep., 39 ; Finley v. Chapman, 119 N. Y., 404 ; 29 St. Rep., 579 ; Jenkins v. Putnam, 106 N. Y., 276 ; 8 St. Rep., 710 ; Glenney v. Stedwell, 64 N. Y., 120 ; Merchants' National Bank v. Sheehan, 101 id., 176 ; Herbage v. City, 109 id., 81; 14 St. Rep., 845 ; Clyde v. Rogers, 87 N. Y., 625 ; Stilwell v. Priest, 85 id., 649 . But, if the facts indispensable to the allowance of the order be not apparent in the papers, the court has no power to grant it; and having no discretion to make an order beyond its jurisdiction, in making it the court commits legal error. “ If the affidavit discloses such a case as gives the judge the power to act, what action he will take is discretionary with him.” Glenney v. Stedwell, 64 N. Y., 128 ; Jenkins v. Putnam, 106 id., 276 ; 8 St. Rep., 710 . “ Here there were facts upon which the court had the power to exercise its discretion, and that is as far as our inquiry can extend.” Stilwell v. Priest, 85 N. Y., 650 .

To authorize an order for the examination of the defendant with a view to the preparation of the complaint, the moving affidavit must show the desired information to be material and neces

p. 79

sary for the purpose; that the plaintiff is without such information, and that it is inaccessible to him otherwise than by recourse to his adversary. Martin v. Clews, 55 N. Y. Supr., 552; 18 St. Rep., 463 ; DeLacy v. Walcott, 36 id., 79; Jenkins v. Putnam, 106 N. Y., 272 ; 8 St. Rep., 710 ; Strakosch v. Press Co., 53 Hun, 503 ; 25 St. Rep., 189 ; Britton v. MacDonald, 3 Misc., 514 ; 52 St. Rep., 494 . The plaintiff’s affidavit exhibits neither that the facts he seeks are necessary to enable him to frame his complaint, nor that he is ignorant of them, nor that he cannot obtain them except by examination of the defendant. On the contrary, the allegations in the affidavit comprise all the elements of a sufficient complaint; and they purport to be made on the personal knowledge of the plaintiff.

Plaintiff’s application was premature. After issue joined, he may well claim the examination of the defendant with a view to the trial.

Upon the ground that nothing was presented to the court below to justify the order, it is reversed, with costs.