Weston v. Reich — 55 N.Y. Sup. Ct. 320

Majority

p. 320

ABIJAH WESTON and JAMES D. WESTON, Respondents, v. ELIZABETH REICH and LORENZ REICH, Appellants.

Headnote

Order for the exa/mination of a defendant before trial — it will not be granted to enable the plaintiff to prepa/re for the trial— Oode of Oivil Procedure, sea. 872.

An order for tbe examination of a defendant before tbe trial of an action will not be made when tbe object of tbe plaintiff in procuring tbe testimony of tbe defendant, as disclosed by tbe affidavits read on tbe motion, is to enable tb& plaintiff to prepare for tbe trial of tbe action.

Tbe plain spirit and intent of tbe Code is to permit tbe deposition to be taken only where tbe testimony is material and necessary to the party for use on tbe trial of tbe action.

Appeal from an order entered in Kings County, denying a motion to vacate an order for the examination of the defendant before the trial of the action.

Abram Klmg, for the appellants.

F. P. Bellamy, for the respondents.

This is an appeal from ah order denying a motion to vacate an order for the examination of the defendant before trial.

The action is for the foreclosure of a mechanic’s lien for building material. The answer of the defendant, Lorenz Reich, whom the plaintiffs desire-to examine, admits the delivery of the lumber substantially in accordance with the allegation of the plaintiff’s complaint ; and in the affidavit presented for the procurement of the order, the attorney says the testimony of the defendant is necessary and material for the plaintiff in the prosecution of this action, and the reason why it is material is that the various allegations and defenses contained in said defendant’s answer are inconsistent; that it is impossible to determine what part of the material alleged in plaintiff’s complaint and bill of particulars the said defendant admits to have received, or whether he admits he has received any or not; that it is impossible for plaintiffs to know of what items of material they will have to prove the sale and delivery, and what witnesses will be necessary for them to produce upon the trial of this action, to prove such sale and delivery. Further down in the

p. 321

affidavit lie says the plaintiffs cannot prepare or safely proceed to the trial of this action until such examination has been made.

There is nothing to show any peculiar knowledge in the possession of the defendant, and from the nature of the case and the transactions involved, it is entirely plain that the plaintiffs have full knowledge of all the facts. They know the material sold to the defendant, and all the details are peculiarly within their knowledge.

The object of the plaintiffs, as disclosed by the affidavit, is to procure the testimony of the defendant to enable them to prepare for the trial of the action, and although some judges have granted these orders with more freedom than others, yet they have never been granted for such a purpose alone.

Some necessity for the procurement of the depositions of the party should be shown to exist, and the plain spirit and intention of the Code is to permit the deposition to'be taken only where the testimony is material and necessary for the party for use on the trial of the action.

Tiffs department is fully committed to these views by many decisions, and it is believed they are supported by the adjudicated cases all over the State.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion to vacate the order should be granted, with ten dollars costs.

Barnard, P. J., concurred; Pratt, J., not sitting.

Order reversed with ten dollars costs and disbursements, and motion granted with ten dollars costs.