Cahill v. Kursheedt , 61 N.Y.S. 1100 ( 1899 )

Per Curiam.

We think that the affidavit upon which the order for defendant’s examination before trial was granted was sufficient; the order for his examination should stand and the order appealed from, which vacated it, should be reversed. The testimony desired by plaintiff is solely within the defendant’s personal knowledge and is necessary for the plaintiff to have upon the trial to maintain this action. It seems to us that sections 870, 872 and 873 of the Code of Civil Procedure were enacted especially to have a defendant testify in a plaintiff’s behalf before trial, when the information sought for is wholly only and solely known to him. The plaintiff should be allowed to examine each adverse and unfavorable witness before trial just as he would usually examine a favorable witness out of court, so that upon the trial he may know just what testimony to expect from such witness. In our judgment it is only just and equitable to allow the examination of the defendant in this instance.

Order appealed from reversed and order for an examination of the defendant affirmed, with costs.

Present: Fitzsmons, Oh. J., and O’Dwver, J.

Order reversed and order for examination affirmed, with costs.