Bigler v. Duryee , 73 Hun 556 ( 1893 )

DYKMAN, J.

This is an appeal from an order denying a motion made by the defendant to vacate an order for his examination as a party before trial, after issue joined. Although the affidavit upon which the order for the examination was based is not named as one of the papers upon which the motion to vacate would be made, yet the insufficiency of that affidavit is now set up as the reason why the motion to vacate should be granted. Examinations of parties before trial have come to be common now, and very useful; and according to the expression of the court of appeals in the case of Herbage v. City of Utica, 109 N. Y. 82, 16 N. E. 62, they may be allowed with liberality, and executed comprehensively. Reasonable rules have been prescribed by the Code and the court rule, which must receive compliance upon application for these orders. They cannot issue for the purposes of exploration or discovery. Under our system of practice, there is no means provided for the acquisition of knowledge respecting the testimony to be encountered upon the trial of an action. Before an order can properly be made for the examination of a party before trial, after issue joined, it must appear that his testimony is material and necessary for the prosecution or defense of such action. In a case like this, it must be made to appear by affidavit that special circumstances exist which render it proper that the party should be examined. The application must be honest and meritorious, and free from ulterior designs.

The affidavit upon which this order was granted states that the testimony of the defendant is material and necessary for the plaintiff, and for the prosecution by him of this action. Then the facts and circumstances which render the examination necessary are fully stated, and they are entirely satisfactory. The affidavit is not only a full compliance with the requirements of the Code, and the rule, but the facts stated satisfy us that the examination of the defendant is necessary to secure the due administration of justice, and that the testimony will be necessary upon the trial of the action. The order should be affirmed, with $10 costs and disbursements.