124 N.Y.S. 203 | N.Y. App. Div. | 1910
The action is brought for goods sold and delivered. The answer sets up sixty-five counterclaims, and the defendant desires to examine two employees of the plaintiff to obtain testimony to establish said counterclaims and to ascertain the names of witnesses. The order is sought to be justified on the ground that the magnitude of the plaintiff’s business is such that only its employees have knowledge of the particular matters in issue.
The right to examine a witness before trial and the right to examine a party depend upon entirely different grounds. Subdivision 5 of section 872 of the Code of Civil Procedure applies to the examination of a witness. This court in this department has held that that subdivision must be read in connection with section 882, which specified what proof must be made to use the deposition
The order should be reversed, with ten dollars costs and disbursements, and the motion granted.
Ingraham, P. J., Laughlin, Clarke and Scott, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted.