6 N.Y.S. 84 | N.Y. Sup. Ct. | 1889
Lead Opinion
The ground of this motion is stated, in part, to be that the affidavit on which the original order for examination was granted was insufficient under section 872 of the Code of Civil Procedure, as supplemented by our rules of practice. The action is upon a policy of fire insurance. The affidavit, which is made by the attorney of record for tlie defendant, alleges that one A. H. Bowen was the agent and adjuster of the defendant, and had the management of the case in charge, and that he had told the affiant what he could learn about the case. The affidavit is entirely upon information and.
Barker, P. J., concurs. (Code Civil Proc. § 870 et seq.,) upon which the proceeding in this action was based, so far as applicable to the particular case of the examination of the plaintiff, in a pending action, by the defendant, before answer. “Sec. 870. The deposition of a party to an action pending in a court of record * * * may be taken * * * at the instance of an adverse party =:= * * at any time before the trial, as prescribed in this article.” “Sec. 872. The person desiring to take a deposition as prescribed in this article may present to a judge of the court in which the action is pending * * * an affidavit setting forth as follows: (1) The names and residences of all the parties to the action, and whether or not they have appeared; and, if either of them has appeared by attorney, the name and the residence or office address of the attorney. * * * (2) * * * The nature of the action, and the substance of the judgment demanded, and * * * the nature of the defense. * * * (4) The name and residence of the person to be examined and that the testimony of such person is material and necessary for the party making sucli application in the * * * defense of such action. * * * (7) Any other fact necessary to show that the case comes within section 870. Sec. 873. The judge to whom such an affidavit is presented must grant an order for the examination. * * * The order may, in the discretion of the judge, designate and limit the matters as to which he [the party] shall be examined.” Portions of the statute omitted show that it is only in case the person to be
Dissenting Opinion
(dissenting.) The following is the full text of the statute
I am unable to see wherein the affidavit presented to Mr. Justice Vann failed to meet the requirements of the statute. The objection made to it in the notice of motion to vacate the order was that it did not state the defense, nor show that the examination was necessary. I find that the affidavit does “set forth” two grounds of defense, and states, in respect to each, “ that the-same is one of the defenses herein.” I do not suppose that the court is at liberty, for the purpose of condemning the affidavit, to assume that there are other defenses which are not set forth. In respect to the second ground of objection specified, it will be seen that the statute quoted above nowhere requires that it should be made to appear that the examination is necessary for any .purpose, nor for what purpose it is desired by the party making the application,—whether for aid in framing an answer or for use on the trial; it is-only required that the affidavit shall set forth that the testimony of the person to be examined is material and necessary for the party making the application, in the defense of the action, (subdivision 4, supra,) and that requirement is satisfied by the affidavit in this case.
The learned judge at special term based his decision upon facts aliunde the affidavit on which the order was made, which in his judgment demonstratedlaches and bad faith on the part of the defendant in making the application. In this I think his decision was erroneous. The order of Justice Vann being properly made, upon the proofs before him, i. e., upon an affidavit which sets forth all the facts required by the statute, it cannot be vacated except upon proofs which successfully controvert some of the facts which are thus set forth, and are required to be set forth, in the affidavit upon which the order was granted. If the defendant has gone beyond the requirements of the statute in the statements of his affidavit, it will not avail the plaintiff to controvert those statements, which are surplusage merely. So long as enough remains of the affidavit, notwithstanding the adverse proofs, to satisfy all the requirements of the statute, the order must stand. But .if the grounds assigned for the order at special term were sufficient, I should hardly concur with that court in holding those grounds established. It is difficult to see-how loches, by delay to apply for the order,, could be predicated of the defendant’s proceeding, since by the statute the order might be applied for at any time before trial. The delay in service of an answer was shown to have been-due to long and severe illness of the defendant’s attorney, and the time to answer had been regularly extended. In respect to the bona ftdes of the application we think it can hardly be said that the defendant had in its possession,, in the proofs of loss, all the information it seeks to obtain by the examination. The defendant is not bound by the statements contained in the plaintiff’s-proofs of loss, and the court was not informed, nor was the defendant required to disclose, precisely what information it sought or expected to obtain by the means provided by the statute. I am aware that there are decisions of the special and general terms of this court which seem to require more proofs-