Majority
p. 360George J. Hubbard, Respondent, v. William H. Near pass et al., as Administrators, Appellants. N. Y. Supreme Court, Second Department, General Term, May, 13, 1889.
Headnote
Examination before trial. Condition.—The court, has power to impose upon the examination of the plaintiff, at the instance of the ad- . verse party, the condition that the motion to vacate be granted ' unless the defendants stipulate that plaintiff may read the deposition in case they fail to read.An order for the examination of plaintiff before trial was procured in this action, and an application to vacate it was made on an order to show cause. Plaintiff, on the return of such order, urged the bad faith of defendants in the examination sought, upon the ground that they did not intend, in good faith, to read or use the depositions on the trial of this action, but would avail themselves of the legal restrictions on plaintiff in using the same against the deceased person whose estate defendants represent. The court granted the motion to vacate the order unless defendants stipulated that plaintiff might read the deposition in case
p. 361
defendants failed to do so, and from this order defendants-appeal.
C. E. Cuddeback, for appellants.
John W. Lyon, for respondent.
—We are of opinion that the condition imposed upon the examination of the plaintiff, at the instance of the-adverse party, was within the power of the court, and. we are not able to say that the power was indiscreetly exercised.
Much may be said in favor of the view that if the administrators require the plaintiff to submit to an examination at their instance, it should be upon terms that such examihation may be used in evidence upon the trial, by plaintiff-
Order affirmed with ten dollars costs and disbursements-
All concur.