13 N.Y.S. 800 | The Superior Court of the City of New York and Buffalo | 1891
The affidavit on which the order for the examination was based, after giving the usual preliminary statements, proceeded to give the facts that would show the nature of the action, and proceeded as follows: “The complaint to be framed herein will, after the discovery sought, state appropriate allegations, based upon said facts, and demand judgment,” etc. “I do further say I have diligently endeavored to ascertain information and evidence of the details and particulars of the matters hereinbefore set forth, and, as I am informed and believe, my said attorneys have likewise endeavored so to do, but cannot procure or obtain the same, either by statements or admissions of the defendant Alfred L. Walcott, and also by reason of the fact that the book and record of the defendant the Rapid Transit & Bridge Con
NOTE.
Affidavit for Examination of Party before Trial — Materiality and Necessity of Testimony. The affidavit to obtain an order for the examination of a party before trial must allege positively, and not argumentatively and inf eren tially, the facts, going to show the necessity for such examination. Feuchtwanger v. Dessar, 5 N. Y. Supp. 129.
-Affiant. The question who is to make the affidavit, whether the party himself or his attorney, is to be determined by their respective knowledge of the materiality of the testimony sought. An affidavit made by the attorney, and stating the facts oír information and belief alone, is insufficient. Koehler v. Sewards, 8 N. Y. Supp. 504. It was held in Hale v. Rogers, 22 Hun, 19, that where the attorney makes the affidavit; he must allege, upon his own knowledge, the materiality of the testimony, or, if it be-made on information, he must set out the sources thereof; but in Cross v. Insurance Co., 6 N. Y. Supp. 84, the supreme court held an affidavit made by the attorney on information and belief insufficient, where it' alleged that the information was derived from defendant’s agent, and no reason was shown why the agent himself did not make it. And in Simmons v. Hazard, 11 N. Y. Supp. 511, the supreme court, by Van Brunt, P. J., said: “These affidavits should be made by the party, he or she being the only-one who can asseverate as to his or her own knowledge or intention, material allegations;” and it held an affidavit by an attorney insufficient where it did not appear that he had any peculiar knowledge of the facts, and no reason, save plaintiff’s absence from the county, was given for his making the affidavit instead of plaintiff.
-Necessary Allegations. Affidavits have been held insufficient, as omitting essential allegations which are rather formal in their nature, and applicable to all cases: (1) For failure to show that the testimony sought was to be used at the trial, in Jenkins v. Putnam, (N. Y.) 12 N. E. Rep. 613: Spero v. Bank, 7 N. Y. Supp. 546; and Williams v. Folsom, 5 N. Y. Supp. 211; (2) for failure to allege that there is reason to apprehend that such testimony cannot be had at the trial, in Chaskel v. Railway Co., 6 N. Y. Supp. 369, and Bank v. Lindenmeyer, 8 N. Y. Supp. 447; (3) and for failure to allege that the facts sought to be elicited are not within affiant’s knowledge, nor easily accessible to him, in Williams v. Folsom, 5 N. Y. Supp. 211; Keenan v. O’Brien, Id. 491; Bandmann v. Jones, 7 N. Y. Supp. 577; and Blennerhasset v. Stephens, 12 N. Y. Supp. 602.
-Sufficiency. In regard to the substance of the allegations of materiality and necessity, it was said in Jenkins v. Putnam, (N. Y.) 12 N. E. Rep. 613, that “the affidavit is required to disclose the nature of the action, and to set forth that the testimony of the party is material and necessary, and the judge must be able to see from the facts stated that the testimony is material and necessary. If from the nature of the action and the other facts disclosed he can see that the examination is not necessary for the party seeking it, then it cannot be supposed that it was the legislative intent that he should be obliged nevertheless to make the order. * * * Where the judge can see that the examination is sought merely for annoyance or delay, and that it is not in fact necessary and material, he ought not to be required, and cannot absolutely be required, to make the order. ” And in Beach v. Mayor, 14 Hun, 79, it is said that the Code contemplates an examination to be used as a deposition on the trial, hence the application must show such a purpose; and if it fails to show that, but on the contrary shows an intent to force the adversary to give information to enable the applicant to hunt up witnesses to be used against him, the application must be denied, or set aside as improvidently granted. Accordingly those affidavits are held insufficient which merely allege that the testimony sought is material and necessary, but fail to state any facts irom which it may be determined whether it is so. Greer v. Allen, 15 Hun, 432; Robertson v. Russell, 20 Hun, 243; Corbett v. De Comeau, 44 N. Y. Super. Ct. 306; Spero v. Bank, 7 N. Y. Supp. 546.
In the following cases the court, in determining the necessity of the testimony sought, has held that the facts alleged in the affidavits were not sufficient to show that it was •necessary: Crooke v. Corbin, 23 Hun, 176, an action for false imprisonment, where the affidavit alleged that one of the defendants procured the other, who was an officer of the law, to arrest plaintiff, claiming that he had committed a breach of the peace in their presence, and also alleged that their testimony was necessary, and that plaintiff could not safely proceed to trial without it; Bank v. Brackett, 31 Hun, 434, an action against a company and its president, where the affidavit alleged that the president’s testimony was necessary to enable plaintiff to ascertain whether such company was a co-partnership, as alleged.in the complaint, or a joint-stock association, as alleged in the answer, and also to ascertain the authority of such president to make notes on behalf of or in the name of his company; Balcom v. Adams, 2 N. Y. Supp. 255, in which the court said that an application for an order to examine defendant to enable plaintiff to frame his complaint “ should not be favored, ” and that “ it is not right to use this section of the Code in order to find out what chance of success the plaintiff may have, ” and held that in an action for an indebtedness to plaintiff’s intestate for labor done and goods delivered it was not necessary to the framing of the complaint that plaintiff should know the amount of such indebtedness, and an examination.to ascertain it should not be granted; and in Strakosch v. Publishing Co., 6 N. Y. Supp. 246, the court in determining the question of necessity did not confine itself to a consideration of the facts alleged in the affidavit for the order, but held that in an action for libel an examination would not be granted to enable defendant to frame a plea of justification, where it appeared, from the affidavit of the person on whose information the alleged libel was published, that he could furnish all the facts needed for such plea.
In an action upon a check, the defense to which was that the check was for alleged gaming, and other illegal considerations, plaintiff’s affidavit stated that the check was given by defendant in satisfaction of a balance found due plaintiff on a settlement of accounts between them, and that defendant then took away with him plaintiff’s memoranda, by which such balance was ascertained; that there was no other means of ascertaining such balance; that there was a valid consideration for such check; and that the defendant had special knowledge regarding certain facts of the case not possessed by any one else. It was held that this affidavit sufficiently showed the necessity of defendant’s examination before the trial, since without it the custodian of the memoranda mentioned, which were essential to plaintiff’s case, might be wholly unknown to him, and it might be impossible for him to obtain them upon the trial. Huntoon v. Jerkowski, ante, 40.
-Fishing. The second class of insufficient affidavits are those which not only fail to show that the testimony sought is necessary, but which disclose upon their face the fact that the examination is only sought to acquaint the applicant with his adversary’s evidence, so that he may be prepared to meet it at the trial. And so affidavits which allege that the examination is necessary to enable the applicant to prepare his prose
The affidavits which have been held to disclose mere “fishing expeditions” have no particular element in common, and there would seem to be ho fixed test to which they can be subjected to detect this fault, except, perhaps, the fact that the information sought appears to he peculiarly within the knowledge of the applicant, which always vitiates the affidavit. In Schepmoes v. Bousson, 1 Abb. N. C. 481, an action for the breach of a contract to lease, an affidavit was held insufficient which alleged that defendant expected to prove by plaintiff that no such agreement was made, that he did not suffer any damages by the breach of it, and that the damages he did suffer were less than those he demanded. And in Manufacturing Co. v. Sutro, 6 N. Y. Supp. 384, an action for slanderous words spoken against plaintiff’s business, an affidavit was held defective which alleged that plaintiff’s information was not sufficient to enable him to ascertain the extent of defendant’s statements, the person to whom they were made, nor the extent of the damage caused, and that plaintiff could not frame his complaint without an examination to ascertain these particulars. In the following cases the ground on which the affidavits were held insufficient was that the information sought to be obtained was peculiarly within the applicant’s own knowledge: An affidavit is insufficient which alleges that it is impossible to determine from defendant’s answer the items of materials sued for of which he admits the receipt, so that an examination is necessary that plaintiff may know what items of sale and delivery he will have to prove at the trial. Weston v. Reich, 1 N. Y. Supp. 412. In an action against a turnpike company for personal injuries sustained by driving off of defendant’s road, an order for the examination of plaintiff was denied, where it appeared that one of defendant’s witnesses was present when the accident occurred, and others were familiar with the condition of the road, and that defendant had stated that it expected to prove the extent of plaintiff’s injuries by designated witnesses, and also that plaintiff’s driver was drunk. Sheehan v. Turnpike Co., 8 N. Y. Supp. 14. And in Golin v. Town of Mooers, 8 N. Y. Supp. 12, an action for injuries sustained by reason of alleged defects in a bridge, an order for the examination of plaintiff, before answer, as to the location of the bridge, the alleged defects therein, the names of the persons present, etc., was refused.