p. 725In the Matter of the Application for the Examination of Charles B. Van Nostrand, etc.(Supreme Court, General Term, First Department,Headnote
Deposition—Examination of party before trial.An affidavit for the examination of a party before trial, if made on information and belief, must recite the facts on which such information and belief are based.
Appeal from an order denying a motion to vacate an order for the examination of a party before trial.
Treadioell Cleveland, for app’lt; William Mitchell, for resp’t.
The affidavit upon which the order is based, authorizing the examination of Yan Eostrand for the alleged purpose of enabling the affiant to prepare his complaint in an action to be brought by him, is fatally defective, in that it fails to support the allegations made upon information and belief by the affidavit of deponent’s informant, or by assigning a reason for not producing such affidavit, and presenting, instead, the statements made by him to the affiant. From the affidavit it appears that the imformation which pursuaded the affiant to make it was obtained from one McDonald, and an alleged copy of an agreement. The so-called “ agreement ” does not justify the belief expressed, and the remaining source of information is therefore McDonald’s
p. 726statement to him. But he has failed to furnish to the court any part of the conversation with McDonald. Whether McDonald said anything to justify the impression made upon the affiant’s mind, the court cannot know ; and the authority to inquire into the private affairs of an alleged interested party to an action will not be granted by it until it has such knowledge of the facts as persuades it that the examination is desired solely for the purposes authorized by the Code. The order should be reversed, with $10 costs and printing disbursements, and motion granted, with $10 costs.
All concur.