Dessert v. Graham

Headnote

Examination of party after issue and before trial—sufficiency of affidavit for.

This action was brought to recover damages for an injury alleged to have been sustained through the negligence of the defendants. The complaint alleged that defendants carelessly . . caused and permitted a rope

attached to a derrick at certain buildings, to be left hanging across the southerly sidewalk of a certain street, at such an elevation as to be a nuisance and dangerous to the life and limbs of passers-by. These allegations were denied by the answer. Upon an affidavit setting forth the substance of the pleadings and continuing, “ Deponent further says that it is material and necessary for the plaintiff to know and to show what the defendants were doing at said building at the time of said accident, who owned, and who then used the said derrick, and under whose orders the work done with the derrick was carried on, and what relation such person or persons so using or controlling said derrick sustained to said defendants, and it is the intention of deponent to use the deposition on the trial of this action, and that without such information and proof said plaintiff cannot safely proceed to trial. That no other or previous application has been made for this order ”—plaintiff’s attorney obtained an order for the. examination of defendants before trial. A motion was made to vacate the order, which was denied. From the order entered on the denial this appeal is taken.

argued :—I. ■ The affidavit upon which the order is based is insufficient to warrant the granting of the order, for the following reasons : First. It does not show that the testimony of the defendants is “material and necessary,” as required by section 872 of the Code of Civil Procedure. The affidavit states that it is “material and necessary for the plaintiff to know and to show what the defendants were doing at said building, etc.” It is not sufficient to merely allege that the examination is “material and necessary for the plaintiff to know, etc.” Facts must be alleged showing to the court the “materiality and necessity” of the desired examination (Beach v. Mayor, 14 Hun, 79 ; Chapin v. Thompson, 16 Ib. 53; Crooke v. Corbin, 23 Ib. 176). The object of these examinations is not to enable a plaintiff to find out whether or

not he has a cause of action against the defendant. This principle has been repeatedly upheld by this court (Juillard v. Hamlin, 2 Civ. Pro. 321; Kirkland v. Moss, Ib.). Secondly. The affidavit does not state that the facts desired of defendants are not within plaintiff’s knowledge or are not obtainable by him irrespective of the defendants. It thus clearly appears that the object of the examination is in the nature of a “fishing” expedition, which will not be tolerated (Schepmoes v. Bowsson, 52 How. 401 ). Thirdly. It appears that the allegation is not made in good faith.

II. But the testimony sought by plaintiff is of such a nature that it would tend to criminate defendants. Defendants cannot and should not be made to criminate themselves. It has been repeatedly held that a party in an examination before trial cannot be compelled to disclose any matter which may subject him to a criminal proceeding (Corbett v. De Comeau, 44 Super. Ct. 306 ; Yomato Trading Co. v. Brown, 63 How. 283 ; Kinney v. Roberts, 26 Hun, 166 ; Phoenix v. Dupuy, 2 Abb. N. C. 146 ; Beebe v. Richardson, 2 Civ. Pro. 320).

cited Sweeny v. Sturgis, 24 Hun, 164 ; Goldberg v. Roberts, 5 Civ. Pro. 96 ; Sweeny v. Sturgis, Ib. 166 ; Tenney v. Mautner, 1 Ib. 64, and note; Harrold v. El. R. R. Co., 21 Hun, 268 .