7 N.Y.S. 577 | N.Y. Sup. Ct. | 1889
The action has been brought for "the publication of an alleged libel in the Hew York Times, and the order was made for the examination of the plaintiff, upon the statement that his testimony is material and necessary for the defendant in the defense of the action, and to enable him to prepare-his answer. The facts concerning which it is stated to be necessary to examine the plaintiff are those which are set forth in the alleged libelous publication, and the answer intended to be made is stated to be that of a general denial, and that the facts set forth in the alleged publication are true. But-neither of these statements, nor all of them taken together, indicate the existence of any necessity for examining the plaintiff as a witness in the action before trial. It has not been set forth that the facts upon which the answer is designed to be made are not at present within the knowledge of or otherwise readily attainable by the defendant. The presumption, on une contrary, is that they must be within his knowledge, or had been obtained by him, or others in the employment of the association, before the time when this publication was made. From the statement made in his own affidavit, and that of the attorney added to it, they can be accepted as entirely truthful and reliable, and still no probable necessity for the examination of the plaintiff in this manner has been disclosed. The defendant certainly has the ability to deny the allegations in the plaintiff’s complaint without such an examination, and so if the ¡acts have come to his information justifying the publication he may also allege the truth of the publication, without in any manner being dependent upon evidence to be derived from the plaintiff. If this cannot be done, the least that can be expected is that the affidavits should disclose such a state of facts. There can be no difficulty, in an application of this description, for the party, in whose behalf it may be made, to state why it becomes necessary to examine the opposite party; and, if the applicant has not already the information to be acquired, that readily admits of a distinct statement to that effect. It was equally so as to the necessity of acquiring further information for the purposes of the proposed pleadings, or to prepare the case for trial. And the additional statement may also readily be made where the facts will justify it, showing the party’s dependence upon evidence to be procured in this manner for the attainment of one or the other of these objects. As much as that is required by the authorities applicable to applications of this character. It is true that in the case of Herbage v. City of Utica, 109 N. Y. 81, 16 N. E. Rep. 62, the broadest possible discretion has been stated to exist for the
All concur.