Cook v. New Amsterdam Real Estate Ass'n — 66 N.Y. St. Rep. 206

Majority

p. 206

Oliver W. Cook, App’lt, v. New Amsterdam Real Estate Association et al., Resp’ts.

(Supreme Court, General Term, Second Department,

Filed March 5, 1895.)

Headnote

Deposition—Examination before trial.

An affidavit by defendant’s attorney for the examination of plaintiff before trial is defective, where it does not state that the facts alleged were known to such attorney nor the sources of his information.

Appeal from an order, denying a motion to vacate an order directing plaintiff’s examination before trial.

Henry W. Smith, for app’lt: Amasa J. Parker, Jr., for resp’t Albany Nat. Bank.

The affidavit upon which the order for the plaint-

iff’s examination was granted was defective in not showing the materiality of the plaintiff’s testimony to the knowledge of the attorney who made the affidavit, or stating the source of the attorney’s information, and the reason for not producing the affidavit of his informant. The affidavit states that issue had been joined in the action by the service of an answer by the Albany Bank, but it does not state the nature of the defense. It states that the attorneys had been informed that the mortgage was not a bona fide mortgage ; that it was not given for a valuable consideration, but made for the purpose of enabling some of the stockholders of the real estate association to obtain title to the mortgaged property by foreclosure proceedings upon a claim not in existence; but it does not state that such facts were known to the attorney making the affidavit, nor does it state the source of the information. Such an affidavit is fatally defective. Hale v. Rogers, 22 Hun, 21 ; In re Bronson, 78 Hun, 351 ; 60 St. Rep. 725 . The order must be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs.