21 N.Y. Sup. Ct. 79 | N.Y. Sup. Ct. | 1878
To entitle a party to an action to examine another party thereto, or a person not a party, before trial, it is required by section 872 of the Code of Civil Procedure, that the person desiring to make such examination, present to one of the judges named in such section, an affidavit setting forth as follows, names and residences of all the parties in the action, and whether or not they have appeared, and if either of them have appeared by attorney, the name, residence and office address of the attorney, the nature of the action and the substance of the cause .of action and the judgment demanded, the nature of the defense if any has been interposed, the name and residence of the person to be examined and that the testimony of such person is material and necessary to the party making such application, for the prosecution or defense of such action, and either the place where such party is sojourning, or where he regularly transacts business, and any other fact necessary to show that the case comes within sections 870 or 871, or relevant to the questions specified in section 873 of the Code of Civil Procedure.
Nothing seems easier than to prepare an affidavit in such case, in conformity to the requirements of the section, and the court ought not, therefore, to allow slipshod and argumentative affidavits as a substitute for those required by the statute. An examination of the affidavit in this case shows that it fails to comply with the requirements in several particulars. For instance, the affidavit does not state the names and residences of all the parties to the action, and whether or not they have appeared. Those are the facts required to be verified by affidavit; they are not indicated in any way except as the names are given by the title of the action preceding the affidavit. The attorneys of the plaintiff are named, and an address is given, but it is not stated whether it is the residence or office address of the attorney.
The name of the person to be examined is not stated, except by calling him the plaintiff, and his testimony is not stated to be material and necessary for the party making the application for the prosecution or defense of the action. The action is brought to recover for an alleged injury suffered by the plaintiff- while riding or driving on one of the avenues in the city of New York,
The provisions of the Code contemplate an examination of the party as a witness in the action itself, with the view to the use of his deposition as testimony upon the trial. But this application shows that the object was not to get his testimony to use upon the trial, but to force him by an examination to furnish-to the defendants the information necessary to enable them to look up witnesses to be used against him. This doubtless may be done by resorting to such an examination, as one of the necessary incidents to the taking of testimony, but where it is stated to be the object and purpose of the examination, the party fails in material respects to comply with the requirements of the Code in his affidavit.
We are of the opinion that the court below should have vacated its order, and that the order denying the motion should be reversed and the motion granted, with ten dollars costs • besides disbursements.
Order reversed, motion granted with ten dollars costs and disbursements.