Dambmann v. Butterfield

Headnote

Order far a second examination of a party before trial — only granted upon special facts being shown justifying the re-examination.

Appeal from an order vacating one directing an examination of the defendants Armstrong' and Quinan before trial. The court at General Term, after holding that as to the defendant Armstrong the order was regular, and should not have been disturbed, said: “As to the defendant Quinan it appears, by his own affidavit, that he had once been summoned on a similar order, and examined and dismissed by the plaintiff’s attorney, after several adjournments, from further attendance. The second order should not have been made for his examination without showing to the court that some new facts had been developed requiring his further examination, either because of material omissions in the former examination, or that his examination had become important upon new questions. After one examination has been had under such an order, the court should not permit another without special grounds shown. We think the order 'below should be reversed as to the defendant Armstrong, and modified as to the defendant Quinan, by directing that the plaintiff have leave, upon showing sufficient facts to justify his re-examination, to apply for a new order, and, as modified,' affirmed, without costs of this appeal.”