Byrne v. Van Dolsen , 75 N.Y.S. 413 ( 1902 )

BISCHOFF, J.

The statutory provisions for an examination before trial contemplate the taking of a deposition for use at the trial. Here the plaintiff in an action for foreclosure, has obtained an order for the examination of two defendants, for the purpose of discovering whether certain other defendants, whom he cannot locate, are infants or absentees. It is quite apparent that the deposition sought can be of no importance at the trial or upon application for judgment, and that it is quite unnecessary. If the plaintiff has used due diligence to obtain the information which he seeks, and cannot discover these defendants, then he does not need this examination, but may obtain an order for service of the summons by publication. He would be in no better position if the examination should show that the parties were in fact absentees or infants, and, in any case, the deposition would not be of the slightest necessity at the trial. It might simplify matters if the plaintiff could thus discover the parties, for personal service, but this is not the office of such an examination.

Motion to vacate order granted, with $io costs.