Ziegler v. Lamb — 74 N.Y. St. Rep. 856

Majority

p. 856

William Ziegler, Resp't, v. Hugh Lamb, App'lt.

(Supreme Court, Appellate Division, First Dept.,

Filed May, 1896.)

Headnote

Deposition—Examination of party before trial.

Examination of a party to an action before trial cannot be haffi for the purpose of enabling his adversary to ascertain whether he has a cause of action ag'ainst other persons not parties.

Appeal from an order denying a motion to vacate an order for the examination of defendant before trial.

Albridge C. Smith, for app’lt; J. Tredwell Richards, for resp’t.

This order should he reversed. The plaintiff makes no affidavit upon which to obtain the order for the examination of the defendant before trial. His attorney alone makes the affidavit. But, further, it clearly appears from the attorney’s affidavit that he does not need the defendant’s examination for the purpose to which he, refers, namely, the purpose of amending his complaint by setting up the real owners of the land. The defendant admits that he has the legal title to the property,, and that is sufficient. There is no provision allowing the examination of a party to an action before trial, so as to enable his-adversary to ascertain whether he has a cause of action against other persons not parties. The avowed object of this examination is to discover whether or not such persons exist, and we know of no principle that would justify the granting of such an application.

The oTder should he reversed, with $10 costs and disbursements, and the motion to vacate the order for the examination of the defendant before trial granted, with $10 costs.